JUDGMENT 1. R.A.Sharma Sri Mnrari Lal, respondent no. 2 was the driver of the petitioner, U. P. State Road Transport Corporotion (hereinafter referred to as the Corporation). Due to rash and negligent driving the bus of the Corporation was involved in a serious accident. Respondent no. 2 was prosecuted and convicted on 27-6-1976 for offence under Section 304-A of Indian Penal Code. Appeal filed by respondent no. 2 against his conviction was dismissed. On 28-1-1977 and his revision was also dismissed on 11-4- 1979. Thereafter vide order dated 2-9-1981 the Corporation dismissed respondent no. 2 in exercise of powers under proviso (a) to clause (2) of Article 311 of the Constitution of India on the ground of his conviction of a criminal court. Against the order of dismissal, respondent no. 2 filed a claim petition before the U. P. Public Services Tribunal, Lucknow Service Tribunal vide its order dated 31-12-1987 has allowed the claim petition of respondent no. 2 and quashed the order of dismissal on the ground that the Corporation has passed an order of dismissal without giving any opportunity of being heard. 2. Against this order of the Service Tribunal, the Corporation has filed his writ petition before this Court which has been admitted and interim stay was granted in favour of the Corporation. Learned counsel for the Corporation has made following submissions in support of the writ petition :- (i) Service Tribunal was not justified in holding that as respondent no. 2 has been, dismissed on the ground of conviction in a criminal case and not on the ground of conduct whioh has led to his conviction on a criminal charge opportunity of being heard was required to be given to the employee. (ii) Order of dismissal cannot be set-aside on the ground that it is retrospective in operation because retrospective part is severable from the main order and main order can remain intact even after retrospective part is set-aside. 3. It has been settled by the Supreme Court in the case of Union of India v. Tulsiram Patel, AIR 1985 SC 14 i 6 that before passing the order under proviso (a) to Clause (2) of Article 311 of the Constitution of India, it is not necessary to give an opportunity of being heard to servant concerned. 3. It has been settled by the Supreme Court in the case of Union of India v. Tulsiram Patel, AIR 1985 SC 14 i 6 that before passing the order under proviso (a) to Clause (2) of Article 311 of the Constitution of India, it is not necessary to give an opportunity of being heard to servant concerned. This case was followed by Honourable Supreme Court in the case of Trikha Ram v. K. Seth, AIR 1988, SC 285. View of the Service Tribunal that the order of dismissal on account of conviction on a criminal charge cannot be passed without giving an opportunity of being heard cannot be sustained and the distinction made between dismissal on the ground of conviction on a criminal charge and dismissal on the ground of conduct which has led to conviction on a criminal charge is too hyper technical and is liable to be ignored. View of learned Single Judge in the case of State v. Sadanand Misra, 1984 (2) LCD 294, on the basis of which the Service Tribunal has taken aforesaid view, stands over-ruled by a Division Bench of this Court io Shy am Narain Shukla v. State of U. P. (1989) UP LB EC 418. In that case termination of service of Shukla was set aside by this Court on the ground that dismissal order was based on the conviction and not on the conduct which led to conviction on criminal charge and as such he was entitled to be heard as contemplated by Article 3U of the Constitution. This view was over-ruled by Division Bench on the ground that after judgment of Supreme Court in Tulsiram Patel's case hearing is not required to be given. 4. The order of dismissal was passed by the Corporation on 2-9-1981 with effect from 27-5-1979. Order of dismissal cannot be passed with retrospective effect. However, this part of the order is severable and can be set aside without disturbing main order of dismissal it is in accordance with the law laid down in R. Jeevaratnam v. State of Madras, AIR 1966 SC 951 and the relevant extract of this judgment is quoted below :- "The order dated October 17, 1950 directed that the appellant be dismissed from service with effect from the date of his suspension that is to say, from May 20, 1949/. In substance this order directed that (1) the appellant be dismissed, and (2) the dismissal to operate retrospectively as from May 20, 1949. The two parts of this composits order are separat able. The first part of the order operates as a dismissal of the appellant as from October 17, 1950. The invalidity of the second part of the order, assuming this part to be invalid, does not affect the first part of the order. The order of dismissal as from October 17, 1950 is valid and effective. The appellant has been lawfully dismissed, and he is not entitled to claim that he is still in service." The impugned order of the Public Services Tribunal is as such, liable to be set aside.- 5. Learned counsel for the respondent no. 2 has argued a new point to the effect that the. Corporation has dismissed from service without taking into consideration his conduct which has led to his conviction on a criminal charge. It is true that the employer has to consider the conduct of an employee leading to his conviction and thereafter to decide whether any of the three punishments referred to in Article 311 ?f the Constitution of India is to be inflict upon him. The conduct of the employee is very much relevant and is required to be considered. It is clear from para 127 of the judgment of the Supreme Court in Tulsiram Patel's case, the relevant extract of which is quoted below : "where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was sueh as warrants, imposition of a penalty and if so, what that penalty should be. For that purpose it will have to persude the judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan's case, AIR 1975 SC 2216 . This, however, has to be done by it exparte and by itself. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which all these three penalties should be imposed on him. This, however, has to be done by it exparte and by itself. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which all these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority\,must, however, bear in mind that a conviction of a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order." 6. I have perused the claim petition filed by respondent no. 2 before the Public Services Tribunal, Lucknow and no such ground of non-consideration of the conduct of respondent no. 2 has been taken. This point is also not argued before the Service Tribunal question as to whether conduct of respondent no. 2 leading to his conviction was considered by the Corporation or not is a question of fact and ought to have been raised and argued before Service Tribunal. Had such a point been argued before Service Tribunal, Tribunal could find out whether allegations of the employee are correct or not and the Tribunal could have remanded the matter for reconsideration or could have set aside punishment or could have substituted penalty. As such I am not inclined to entertain this point for the first time under Article 226 of the Constitution of India. The writ petition is liable to be partly allowed. The order of the Public Service Tribunal dated 31-12-1987 (Annexure VIII to the writ petition) is quashed. The order of dismissal dated 2-9-1981 so far as its enforcement with retrospective effect i.e. 27-5-1979 is set aside but the main order of dismissal whereby respondent no. 2 has been dismissed from service shall remain intact and it will be enforced with effect from 2-9-1981 i.e. the date on which it was passed by the Corporation. As the retrospective part of the order of dismissal is being set aside, respondent no. 2 has been dismissed from service shall remain intact and it will be enforced with effect from 2-9-1981 i.e. the date on which it was passed by the Corporation. As the retrospective part of the order of dismissal is being set aside, respondent no. 2 will be entitled to his salary from the Corporation from 27-5-1979 to 1-9-1981 and the salary shall be paid within three months from the date of service of certified copy of this judgment on the Corporation. Any amount paid for this period by the Corporation to respondent no. 2 shall be adjusted. 7. The writ petition is accordingly partly allowed. In view of the facts and circumstances of the case, there will be no order as to costs.