JAGANNATHA SHETTY, J. ( 1 ) THIS appeal is directed against the order dated 20-8-1973 made by chandrashekhar, J in WP. 266 of 1972 whereby the learned Judge allowed the petition and quashed the order of thp Commissioner, Hubli, dharwar Municipal Corporation (' the Commissioner') terminating the services of Respondent-1 and the Appellate order of the Standing Committee of the Corporation ( 2 ) TO state briefly, the facts are these: Respondent-1 was a Clerk in the Water Meter Section of the Hubli-Dharwar Municipal Corporation ('the Corporation' ). He was entrusted with the duty of collecting the. wa,ter charges. He collected the water charges to the extent of rs. 880-66, but did not immediately account for it. The Corporation suspected misappropriation. So he was kept under suspension pending departmental enquiry. In the meanwhile, he was prosecuted in the court of the Judicial Magistrate, First Class, Dharwar, for an offence punishable under S. 408 IPC. Before the Court, Respondent-1 pleaded guilty to the charge for which, the learned Magistrate convicted him but released on probation of good conduct under S. 4 (1) of the Probation of offenders Act, 1958. After the judgment in the criminal case, the Commissioner by his order dt. May 28, 1970 terminated the services of Respondent-1. His order reads thus :"shri G. V. Kashimath, a temporary accounts clerk in the meter section, Dharwar was placed under suspension under order referred to above at (i) with immediate effect pending departmental enquiry against him on the charge that he has misappropriated water charges to the extent of Rs. 880-66 even though the amount was collected by him by passing official receipt. On the basis of the complaint lodged by the Asst Meter Superintendent, dharwar Unit in the matter of short credit of the amount as stated above, investigation into the matter was made by the police Authorities and he was charge-sheeted for the offence under the provisions of IPC. The Judicial Magistrate. I Class First Court, Dharwar convicted him (Shri G. V. Kashimath) under S. 251a (5) Crlpc for an offence punishable under S. 408 of IPC. In view of the above, it is felt not advisable to retain Shri G. V. Kashimath in Municipal Service. His services are hereby terminated with effect from 28-5-1970. "against the said order Respondent-1 appealed to the Standing Committee of the Corporation. The Committee did not go into the merits of the matter. In view of the above, it is felt not advisable to retain Shri G. V. Kashimath in Municipal Service. His services are hereby terminated with effect from 28-5-1970. "against the said order Respondent-1 appealed to the Standing Committee of the Corporation. The Committee did not go into the merits of the matter. It dismissed the appeal on the ground among others that since Respondent-1 has been convicted by the Criminal Court, it would not be advisable to go into the merits of the matter. Thereupon, Respondent-1 preferred the writ petition challenging the order of the Commissioner and also of the Standing Committee ( 3 ) THE sole question which came up for consideration before the learned Single Judge was whether the order of the Commissioner was in accordance with Sec. 56 (3) (a) of the Bombay Provincial Municipal corporation Act, 1949. For immediate reference, the relevant portion of the section is set out herein :"56 (3) No Officer or Servant shall be reduced to a lower post or removed or dismissed from service under this section unless he has been given a reasonable opportunity of showing cause against such reduction, removal or dismissal: provided that this sub-section shall not apply- (a) Where a person is reduced, removed or dismissed on the ground of conduct which has led to his conviction on a criminal charge; or (b ). . . . . . . . . . . . . "clause (a) of S. 56 (3) is in pari materia with Art. 311 (2) (a) of the Constitution of India. ( 4 ) THE learned Single Judge after considering the question came to the conclusion that the order of the Commissioner was not in accordance with the above provision. He said that under Cl (a) of S. 56 (3), the Commissioner was required to take into account the conduct of Respondent-1 which led to the conviction for the offence of misappropriation, and not the mere fact cf conviction. He accordingly found the impugned order bad and quahed it, with liberty to the Commissioner to make a fresh order in accordance with law. ( 5 ) WE entirely agree with the view taken by the learned Single judge. A provision similar to S. 56 (3) (a) came up for consideration before a Full Bench of Punjab and Haryana High Court in Om Prakash v. Director, Postal Service, AIR. 1973 Pun and Har. ( 5 ) WE entirely agree with the view taken by the learned Single judge. A provision similar to S. 56 (3) (a) came up for consideration before a Full Bench of Punjab and Haryana High Court in Om Prakash v. Director, Postal Service, AIR. 1973 Pun and Har. 1 FB. It was observed therein that an order of dismissal or removal or for compulsory retirement can be passed not on the basis of the conviction, but only if the competent authority finds that the relevant misconduct of the concerned Govt Servant renders his further retention in public service undesirable. The view taken by the Punjab and Haryana High Court has been referred to and approved by the supreme Court in Divisional Personnel Officer, S Rly v. Union of India, AIR. 1975 SC 2216. In that case, the Supreme Court was considering the scope of rule 14 (i) of the Railway Servants (Discipline and Appeal) Rules, 1963 which is also in pari materia with Art. 311 (2) (a) of the Constitution. While dealing with the scope of the latter, the Supreme Court observed at page 2220 as follows:"it appears to us that proviso (a) to Art. 311 (2) is merely an enabling provision and it does not enjoin or confer a mandatory duty on the disciplinary authority to pass an order of dismissal, removal or reduction in rank the moment an employee is convicted. This matter is left completely to the discretion of the disciplinary authority and the only reservation made is that departmental inquiry contemplated by this provision as also by the Departmental Rules is dispensed with. " ( 6 ) IT is unnecessary to consider the other decisions cited at the bar since Mr. K. A. Swamy for the Appellant, frankly submitted before us that the basis for the dismissal of Respondent-1 cannot be the factum of conviction but it could only be his conduct which led to the conviction by the Criminal Court. The short question therefore is whether the commissioner had considered the conduct of Respondent-1 which led to his conviction before the Criminal Court, before he made the impugned order. The answer to this question in our opinion, must be in the negative. The short question therefore is whether the commissioner had considered the conduct of Respondent-1 which led to his conviction before the Criminal Court, before he made the impugned order. The answer to this question in our opinion, must be in the negative. The order of the Commissioner has been properly analysed by the learned Single Judge, which we repeat hereunder:"the first three paras of the above order merely narratet the sequence of events which culminated in the conviction of the petitioner. The words ' in view of the above in the last para of the order, do not seem to refer to the petitioner's conduct, but seem to refer to the fact of his conviction. Even reading the order as a whole, I am unable to accept the contention of Sri Swamy that it shows that the Commissioner had taken into account the conduct of the petitioner which led to his conviction for the offence of misappropriation. On the other hand, from that order it would appear that the Commissioner thought that the mere fact of the conviction of the petitioner for an offence, would make it not advisable to continue him in Municipal Service. "it is seen therefrom, the Commissioner had taken into consideration only the factum of conviction of Respondent-1. He had not adverted to the conduct of Respondent-1, which led to the conviction. That is not sufficient, and cannot be the basis of penalty. Sec. 56 (3) (a) is an enabling provision with a discretion to the Commissioner to make an order of removal, dismissal or reduction in rank of Respondent-1. If the Commissioner wants to make an order of the kind aforesaid, he must consider the conduct of Respondent-1 which led to his conviction and form an opinion whether his further retention in service is undesirable or any other minor penalty would meet the ends of justice. As the order of the Commissioner evidently falls short of this requirement, it is impossible to sustain it. ( 7 ) IN the result, the appeal fails and is dismissed. Respondent-1 is entitled to his costs. Advocate's fee Rs. 100. --- *** --- .