# State Of U.P. & Ors v. Dhirendra Singh Yadav, Police Inspector

- **Citation:** (2025) 11 ILRA 732
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-24
- **Case number:** Special Appeal No. 952 of 2025
- **Bench:** Manoj Kumar Gupta, Siddharth Nandan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-dhirendra-singh-yadav-police-inspector-54780
- **Pages:** 12

## Headnote

Whether the order of dismissal has been
passed without application of mind?
11 All. State Of U.P. & Ors. Vs. Dhirendra Singh Yadav, Police Inspector
733
Headnotes
A. Service Law - Uttar Pradesh Police
Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991:
Rule 8(2)(a), 8(4)(b); Constitution of
India: Article 311(2) - The disciplinary
authority for exercising power under the
second proviso to Article 311(2) of the
Constitution or the service rules, has to
take into consideration the conduct of the
employee, which has led to his conviction.
If
the
conduct
does
not
warrant
punishment
of
dismissal, removal
or
reduction in rank, the power under Article
311 (2) cannot be invoked. (Para 10, 16)

Proviso to Rule 8(2) is pari materia with
the second proviso to Article 311(2) of the
Constitution. If the conduct is such as to
deserve a punishment different from dismissal,
removal or reduction in rank, the second proviso
cannot come into play at all, because Article 311
(2) is itself confined only to these three
penalties.
Therefore,
before
denying
a
government servant his constitutional right to
an inquiry, the first consideration would be
whether
the
conduct
of
the
concerned
government servant is such as justifies the
penalty of dismissal, removal or reduction in
rank. Once that conclusion is reached and the
condition specified in the relevant clause of the
second
proviso
is
satisfied,
that
proviso
becomes applicable and the government servant
is not entitled to an inquiry. (Para 9)

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 such as warrants
the imposition of a penalty and, if so, what
that penalty should be. For that purpose it
will have to peruse the judgment of the
criminal court and consider all the facts
and circumstances of the case and the
various factors set out in Challapan Case. This,
however, has to be done by it ex-parte and by
itself. Once the disciplinary authority reached to
conclusion
that
the
government
servants'
conduct was such as to require dismissal or
removal from service or reduction in rank he
must decide which of 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. (Para
14)

B. The disciplinary authority must bear in
mind that a conviction on 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. (Para 14)

In present case, the contesting respondent was
posted as Inspector in District- Bijnor at the
time of the incident in the year 1992. The trial
court in Sessions Trial No.

## Text

_Characters 0–39,959 of 41,592. This is a partial read: ask again with offset=39959 for what follows._

732 INDIAN LAW REPORTS ALLAHABAD SERIES
31. A bare perusal of Rule 4
indicates
that
minimum
eligibility
qualifications for the post of Assistant
Teacher of recognized Junior High School
shall be a graduation degree from a
University recognised by U.G.C., and a
teachers training course recognized by
the State Government or NCTE. The
description of various training courses
given in Rule 4 has to be read along with
graduation degree and not in isolation.
Once sub-Rule (1) specifically provides a
graduation
degree
as
minimum
qualification for the post of Assistant
Teacher, making provision for a teachers
training course prescribed in Rule (1) itself
is an 'additional eligibility qualification'
for appointment on the post of Assistant
Teacher.
Hence,
even
the
eligibility
prescribed in Rules of 1978 does not come
to the aid in challenge to the Government
Orders being in force since 1998 or the
Government Order dated 09.09.2024 or the
National Education Policy and, hence, the
argument advanced by Shri Khare based
upon Rules of 1978 also stands discarded.

CONCLUSION

32. We are, therefore, of the
opinion that the order impugned passed by
the learned Single Judge holding Clause
4(1) of the Government Order dated
09.09.2024 as arbitrary, discriminatory or
unconstitutional does not take into account
various vital aspects of the matter, such as
inter-connectivity
and
co-relation
in
between various Government Orders issued
from time to time and NCTE Regulations
vis-a-vis Service Rules applicable for
teaching in basic education institutions and
also
significant
definitions
described
hereinabove and changed nomenclature of
B.T.C. course into D.El.Ed. course but
carrying the same eligibility criteria over
more than two decades. Further, the
decision of the learned Single Judge based
upon alleged discrepancy in between two
courses i.e. D.El.Ed. 2024 and D.El.Ed.
2024 (Special Education), is also found
contrary to record which does not indicate
any D.El.Ed. 2024 (Special Education)
course being run by DIET, nor is the
conclusion drawn in that direction based
upon case of the parties.

33. Accordingly, the special appeal
is allowed.

34. The impugned judgement and
order dated 24.09.2024 passed by the
learned Single Judge in Writ-C No.24528
of 2024 is hereby set aside and the writ
petition filed by the respondents stands
dismissed.
----------
(2025) 11 ILRA 732
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2025

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE SIDDHARTH NANDAN, J.

Special Appeal No. 952 of 2025

State Of U.P. & Ors. ...Appellants
Versus
Dhirendra Singh Yadav, Police Inspector
 ...Respondent

Counsel for the Appellants:
Kunal Ravi Singh, Tej Bhanu Pandey

Counsel for the Respondent:
Kailash Prakash Pandey, Prashant Mishra

Issue for consideration
 Whether the order of dismissal has been
passed without application of mind?
11 All. State Of U.P. & Ors. Vs. Dhirendra Singh Yadav, Police Inspector
733
Headnotes
A. Service Law - Uttar Pradesh Police
Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991:
Rule 8(2)(a), 8(4)(b); Constitution of
India: Article 311(2) - The disciplinary
authority for exercising power under the
second proviso to Article 311(2) of the
Constitution or the service rules, has to
take into consideration the conduct of the
employee, which has led to his conviction.
If
the
conduct
does
not
warrant
punishment
of
dismissal, removal
or
reduction in rank, the power under Article
311 (2) cannot be invoked. (Para 10, 16)

Proviso to Rule 8(2) is pari materia with
the second proviso to Article 311(2) of the
Constitution. If the conduct is such as to
deserve a punishment different from dismissal,
removal or reduction in rank, the second proviso
cannot come into play at all, because Article 311
(2) is itself confined only to these three
penalties.
Therefore,
before
denying
a
government servant his constitutional right to
an inquiry, the first consideration would be
whether
the
conduct
of
the
concerned
government servant is such as justifies the
penalty of dismissal, removal or reduction in
rank. Once that conclusion is reached and the
condition specified in the relevant clause of the
second
proviso
is
satisfied,
that
proviso
becomes applicable and the government servant
is not entitled to an inquiry. (Para 9)

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 such as warrants
the imposition of a penalty and, if so, what
that penalty should be. For that purpose it
will have to peruse the judgment of the
criminal court and consider all the facts
and circumstances of the case and the
various factors set out in Challapan Case. This,
however, has to be done by it ex-parte and by
itself. Once the disciplinary authority reached to
conclusion
that
the
government
servants'
conduct was such as to require dismissal or
removal from service or reduction in rank he
must decide which of 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. (Para
14)

B. The disciplinary authority must bear in
mind that a conviction on 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. (Para 14)

In present case, the contesting respondent was
posted as Inspector in District- Bijnor at the
time of the incident in the year 1992. The trial
court in Sessions Trial No. 1 of 2002 registered
on basis of the charge-sheet submitted by the
CBI u/Ss 120B, 302, 364/34 and 218 IPC after
full fledged trial and due opportunity to the
contesting respondent and 16 other persons,
who were part of the same police team, has
recorded conviction against all of them. The
offences
committed
by
the
contesting
respondent and other co-accused persons were
of a heinous nature and the charges pertaining
to abduction and murder have been proved
beyond all reasonable doubt. (Para 17)

This court has dismissed the appeals, concurring
with the findings recorded by the trial court both
on conviction and sentence. Although, the
contesting respondent is stated to have filed
criminal appeal before the Supreme Court
challenging the judgment of this court in
criminal appeal and wherein bail has also been
granted to the contesting respondent on ground
of parity with the other co-accused persons, but
the fact remains that the order of conviction
passed by the trial court, as upheld in the
criminal appeal, still holds good. (Para 18)

The disciplinary authority while passing the
order of dismissal dated 16.02.2015 has duly
taken notice of the entire background facts, the
specific
charges
against
the
contesting
respondent, the order of conviction by the trial
court and has, thereafter, held that the conduct
of the contesting respondent was utterly
inhumane, abuse of official powers, self-serving,
against public interest and interest of society.
The order of the disciplinary authority
734 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissing
the
contesting
respondent
from service shows full application of
mind to the facts of the case and the
conduct of the contesting respondent,
which has led to his conviction. (Para 19)

C. Where a person is convicted by the
court for an offence involving 'moral
turpitude', dismissal should follow unless
the punishing authority for reasons to be
recorded in writing considers it otherwise.
The provision u/Rule 8(4)(b) is not an
independent provision but only regulates the
exercise of power under the proviso to sub-rule
(2) of Rule 8. Thus, in case of conviction for
offence involving moral turpitude, ordinarily
dismissal has to follow unless there exists any
special reason and which is to be recorded in
writing. The findings returned by the disciplinary
authority, though, does not specifically uses the
phrase 'moral turpitude' but also does not leave
any manner of doubt that the same amounted
to moral turpitude of the highest degree. (Para
20)

The learned Single Judge has not referred to the
facts of the case nor has examined the findings
of the trial court relating to the conduct of the
contesting respondent, which has led to his
conviction and merely by placing reliance on two
previous judgments which, as noted above,
were based on facts of those particular cases,
has quashed the punishment order. (Para 20)

The order of learned Single Judge 27.02.2025
corrected vide order dated 15.04.2025 is,
therefore,
unsustainable
in
law
and
is,
accordingly, set aside. (Para 21)

Special appeal allowed. Consequently, the writ
petition stands dismissed. (E-4)

Case Law Cited
1. Vishwanath Vishwakarma Vs. State of U.P.,
Writ-A No.4422 of 2015, 2023 (10) ADJ 473
(Para 2)
2. Arun Kumar Shukla Vs. State of U.P. and
Others, Writ-A No.25901 of 1996, 2018 (2) ADJ
353 (Para 2)
3. Union of India Vs. Tulsi Ram Patel, 1985 (3)
SCC 398 (Para 9)
4. State of U.P. Thus. Sec. Home and 3 Others
Vs.
Prem
Milan
Tiwari,
Constable
dated
25.03.2015, Special Appeal (Defective) No.219
of 2015 (Para 13)
5. Shankar Dass Vs. Union of India, 1985 (2)
SCR 358 (Para 13)
6. Deputy Director of Collegiate Education
(Administration), Madras Vs. S. Nagoor Meera,
(1995) 3 SCC 377 (Para 13)
7. Government of A.P. and Another Vs. B.
Jagjeevan Rao, 2014 7 SCALE 434 (Para 13)
8. Sadanand Mishra Vs. State of U.P. and
Another, WP No.2464 of 1991 (SB) dated
03.12.1992 (Para 14)
9.
Divisional
Personnel
Officers
Vs.
T.R.
Chellappan, 1975 AIR 2216 (SC) (Para 16)

List of Acts
 Uttar Pradesh Police Officers of the Subordinate
Ranks (Punishment and Appeal) Rules, 1991;
Constitution of India.

List of Keywords
 disciplinary authority, application of mind,
moral turpitude, dismissal.

Appearances for Parties
For Appellant(s): Kunal Ravi Singh, Tej Bhanu
Pandey
For Respondent(s): Kailash Prakash Pandey,
Prashant Mishra

(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Siddharth Nandan, J.)

1. Heard Shri T.B. Pandey, learned
Standing Counsel for the appellants and
Shri
Tarun
Agrawal,
learned
Senior
Counsel assisted by Shri Prashant Mishra,
learned
counsel
for
the
contesting
respondent.

2. The present intra court appeal is
directed against the judgement and order
dated 27.02.2025 (corrected vide order
dated 27.02.2025) in Writ-A No.18987 of
2023. The writ court has allowed the writ
petition and has quashed the order of
dismissal of the contesting respondent from
11 All. State Of U.P. & Ors. Vs. Dhirendra Singh Yadav, Police Inspector
735
the post of Inspector, Civil Police dated
16.02.2015 and the order of appellate
authority dated 16.07.2015 dismissing the
appeal. The learned Single Judge has
placed reliance on the judgements of this
court
in
Writ-A
No.4422
of
2015
(Vishwanath Vishwakarma vs. State of
U.P.), 2023 (10) ADJ 473, and Writ-A
No.25901 of 1996 (Arun Kumar Shukla
vs. State of U.P. and Others), 2018 (2)
ADJ 353 in allowing the writ petition. The
judgement and order of learned Single
Judge, being a brief one, is reproduced
below, for ease of reference:

"1. Heard learned counsel for the
petitioner and learned Standing Counsel
for the State-respondents.

2. The case was heard on
18.02.2025 and Court had passed the
following order:- "1. Heard learned counsel
for petitioner and learned Standing Counsel
for State-respondents. 2. Learned counsel for
petitioner submitted that present controversy
is squarely covered with the judgment of this
Court passed in Writ-A No.4422 of 2015
(Vishwanath Vishwakarma vs. Stateof U.P.
and others) decided on 18.09.2023 and WritA No.25901 of 1996 (Arun Kumar Shukla vs.
State of U.P. and Others) decided on
16.01.2018, therefore, this petition may also
be allowed on same terms. 3. Sri Rajesh
Kumar Srivastava, learned Standing Counsel
prays for and is granted a week's time to go
through the aforesaid judgment and assist the
Court. 4. List this case on 27.02.2025 at 2:00
P.M. along with connected matters. "

3. Learned Standing Counsel
could not dispute the aforesaid facts.

4. Accordingly, writ petition is
allowed in terms of aforesaid judgments.
The impugned orders dated 16.02.2015 and
16.07.2015 passed by respondent Nos.3
and 2 are hereby quashed."

3. The facts in brief necessary for
disposal of the instant appeal are as
follows:

The charge against the contesting
respondent was that while he was posted as
Inspector, Civil Police in the year 1992, in
District- Bijnor, he abducted one Jaswinder
Singh @ Jassa son of Bachan Singh,
resident of Village- Majitha, Amritsar,
Punjab,
a
Sewadaar
at
Delhi
Sikh
Gurdwara, Rakab Ganjk, New Delhi on
30.10.1992 from outside the Gurdwara,
brought him to Village- Kashiwala on
31.01.1992, and killed him in a fake
encounter, proclaiming him to be an
unknown sikh terrorist. He also lodged a
First Information Report against him, being
Case Crime No.187 of 1992, under Section
392 IPC read with Section 3/4 TADA Act,
at Police Station- Badhapur, Bijnor. In
relation to the said incident, it appears that
Criminal Writ No.632 of 1992 was filed by
one Sardar Sharanjeet Singh son of late
Mohinder Singh, Resident of Village-
Majitha,
District-Amritsar,
Punjab
for
holding an investigation through CBI. The
Supreme Court in the said case, directed for
the incident being investigated by CBI.
Pursuant to the said order, CBI carried out
investigation and submitted chargesheet
against the contesting respondent and 16
others, who were involved in the fake
encounter. On basis thereof, Sessions Trial
No.1 of 2002 was registered. The Special
Judge, CBI, Court No.1, Ghaziabad vide
judgement dated 29.03.2012 held the
contesting respondent guilty of offences
under Sections 120B, 302, 364, 34 and 218
IPC and punished him to rigorous life
imprisonment under Sections 120B, 364
and 302 and fine of Rs.5,000/- and in case
736 INDIAN LAW REPORTS ALLAHABAD SERIES
of
default,
to
additional
simple
imprisonment of one month; under Sections
302/34 IPC to rigorous life imprisonment
and fine of Rs.5000/- and in case of default,
one month additional simple imprisonment;
and three years rigorous imprisonment
under Section 218 IPC. All the sentences
were to run concurrently. The contesting
respondent, on basis of the said order of
conviction, remained incarcerated from
29.03.2012.

4. Upon conviction of the contesting
respondent and his detention in the jail, the
department initiated action against him and
he was dismissed from service vide order
dated
16.02.2015
passed
by
Deputy
Inspector General of Police, Agra Region,
Agra.
The
contesting
respondent
challenged the order of his dismissal in
departmental
appeal,
which
too
was
dismissed vide order dated 16.07.2015.

5. The main submission of learned
Standing
Counsel
appearing
for
the
appellants is that the two judgements of this
court, relying on which the writ petition has
been allowed, are not applicable to the facts
of the instant case. It is submitted that the
judgement in the case of Vishwanath
Vishwakarma (supra) is in respect of a
Lekhpal and not member of police force. It
was on facts of that case that the court
found that there was no application of mind
by the disciplinary authority in relation to
the conduct of the delinquent, which led to
his
conviction,
though,
a
mandatory
requirement under the second proviso to
Article
311(2)
of
the
Constitution.
However, the present case relates to an
Inspector of Civil Police, who is member of
disciplined
force
and
further,
the
disciplinary authority while passing the
order of dismissal, has duly taken into
consideration the conduct of the contesting
respondent leading to his conviction. The
second part of the submission, made in
respect of the judgement in the case of
Vishwanath Vishwakarma (supra), has
again been pressed in distinguishing the
judgement in case of Arun Kumar Shukla
(supra). It is contended that under Rule
8(2)(a) of the Uttar Pradesh Police Officers
of the Subordinate Ranks (Punishment and
Appeal) Rules, 1991 (for short, 'the Rules'),
which is pari materia with the second
proviso of Article 311(2), only a limited
enquiry into the conduct of the delinquent
leading to his conviction on criminal
charges is to be held and in the instant case,
it was duly held. Reliance has also been
placed on Regulation 493 of the Police
Regulations
in
contending
that
no
departmental enquiry was necessary in the
facts of the present case where the trial
court
has
ordered
rigorous
life
imprisonment on charges under Section
302 IPC and other offences.

6. Shri Tarun Agrawal, learned Senior
Counsel appearing for the contesting
respondent, on the other hand, submits that
the law laid down by this court in two
previous judgements on which reliance has
been placed is duly applicable to the facts
of the present case. He submits that the
disciplinary authority can make departure
from the normal procedure of holding
disciplinary enquiry only when it comes to
the conclusion that the conduct of the
delinquent was such that he was liable to be
punished with one of the three major
punishments i.e., dismissal, removal or
reduction in rank and, since, there is no
consideration of the said aspect by the
disciplinary authority, therefore, the order
of
the
disciplinary
authority
is
unsustainable in law. He further submits
that the dismissal order has been passed
exercising power under Rule 8(4)(b), which
11 All. State Of U.P. & Ors. Vs. Dhirendra Singh Yadav, Police Inspector
737
applies to a case where any officer is
convicted by the court for an offence
involving ?moral turpitude? whereas in the
instant case, the disciplinary authority has
not recorded any such finding. Therefore,
recourse to Rule 8(4)(b) is without
application of mind and it vitiates the order
of dismissal.

7. We have considered the rival
submissions and also perused the material
on record.

8. In the present case, admittedly, the
disciplinary enquiry was not held and the
dismissal is on the ground of conviction on
a criminal charge, taking recourse to Rule
8, which is as under: "

8. Dismissal and removal.--(1)
No Police Officer shall be dismissed or
removed from service by an authority
subordinate to the appointing authority.

(2) No Police Officer shall be
dismissed, removed or reduced in rank
except after proper inquiry and disciplinary
proceedings as contemplated by these rules:

Provided that this rule 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; or

(b)
Where
the
authority
empowered to dismiss or remove a person
or to reduce him in rank is satisfied that for
some reason to be recorded by that
authority in writing, it is not reasonably
practicable to hold such enquiry; or

(c) Where the Government is
satisfied that in the interest of the security
of the State it is not expedient to hold such
enquiry.

(3) All orders of dismissal and
removal of Head Constables or Constables
shall be passed by the Superintendent of
Police. Cases in which the Superintendent
of Police recommends dismissal or removal
of a Sub-Inspector or an Inspector shall be
forwarded to the Deputy Inspector General
concerned for orders.

(4) (a) The punishment for
intentionally or negligently allowing a
person in police custody or judicial custody
to escape shall be dismissal unless the
punishing authority for reasons to be
recorded in writing awards a lessor
punishment.

(b) Every officer convicted by the
Court for an offence involving moral
turpitude shall be dismissed unless the
punishing authority for reasons to be
recorded in writing considers it otherwise."

9. Proviso to Rule 8(2) is pari materia
with the second proviso to Article 311(2) of
the Constitution. The Constitution Bench of
the Supreme Court in Union of India vs.
Tulsi Ram Patel, 1985 (3) SCC 398 in
relation to exercise of power under the
second proviso to Article 311(2) has held
as follows:

"The second proviso will apply
only where the conduct of a government
servant is such as he deserves the
punishment of dismissal, removal or
reduction in rank. If the conduct is such as
to deserve a punishment different from
those mentioned above, the second proviso
cannot come into play at all, because
Article 311 (2) is itself confined only to
these three penalties. Therefore, before
738 INDIAN LAW REPORTS ALLAHABAD SERIES
denying
a
government
servant
his
constitutional right to an inquiry, the first
consideration
would
be
whether
the
conduct of the concerned government
servant is such as justifies the penalty of
dismissal, removal or reduction in rank.
Once that conclusion is reached and the
condition specified in the relevant clause of
the second proviso is satisfied, that proviso
becomes applicable and the government
servant is not entitled to an inquiry."

10. The law laid down by Supreme
Court in Tulsi Ram Patel (supra) is being
consistently followed and it has been
reiterated time and again that mere
conviction of an employee would not be
sufficient for exercise of power under
Article 311(2) of the Constitution unless
the employer has taken into consideration
the conduct of the government servant,
which has led to his conviction and arrive
at a conclusion that the conduct was such
as would result in dismissal, removal or
reduction in rank. In other words, if the
conduct
does
not
warrant
these
punishments, the power under Article 311
(2) cannot be invoked.

11. In Vishwanath Vishwakarma
(supra), the employee was working as a
Lekhpal. A day before his date of
superannuation, he was dismissed from
service on the ground of his conviction in a
criminal case under Sections 148, 302, 149
and 324 IPC. The court found, as a matter
of fact, that the disciplinary authority while
passing the order of dismissal had not
examined whether the conduct leading to
conviction was such as would result in
imposition of one of the punishments
mentioned in Clause (a) of the second
proviso to Article 311(2). Consequently,
the order of dismissal was set aside. This is
evident from the observations made in
paragraph 24 of the judgement, which are
as follows:

"From
the
perusal
of
the
impugned order dated 30.08.2014, it is
apparently clear that it has been passed
only on the ground of conviction without
having any discussion or application of
mind over the conduct of the petitioner,
which is mandatory requirement in light
interpretation of Article 311(2)(a) of
Constitution of India by the Apex Court as
well as by this Court. Now this issue is no
res integra. Apex Court from the judgement
of Tulsiram Patel(Supra) to many other
judgments
has
considered
this
issue
repeatedly and has held that even after
conviction of an employee, while passing
the removal or dismissal order, there must
have been consideration of conduct of the
employee and without that, any order of
dismissal is bad."

12. Again, in Arun Kumar Shukla
(supra) where the employee was in police
service and was dismissed from service on
the ground of his conviction in criminal
case under Section 109 IPC for abetment of
murder, it was found that the conduct of the
employee concerned, which has led to his
conviction, was not considered by the
disciplinary authority while passing the
order
of
dismissal.
The
relevant
observations made in paragraph 13 in this
behalf are as follows:

"In view of the settled proposition
of law, as discussed above, a government
employee can not be dismissed, removed or
reduced in rank merely on the ground that
he has been convicted by a Court of law.
Thus, conviction alone is not enough to
punish a government employee, but it is
conduct of the employee concerned, which
had led to his conviction on the basis of
11 All. State Of U.P. & Ors. Vs. Dhirendra Singh Yadav, Police Inspector
739
which, the government employee can be
punished. Hence, it is necessary for
disciplinary authorities to consider the
conduct of convict government servant,
which had led to his conviction. In the
absence of the same, the order of the
punishment would be bad. Further the
consideration by the disciplinary authority
is required to be recorded in writing."

13. Here, it would be useful to take
note of the judgement of Division Bench of
this court in State of U.P. Thus. Sec.
Home and 3 Others vs. Prem Milan
Tiwari, Constable dated 25.03.2015 in
Special Appeal (Defective) No.219 of
2015 relied upon by learned Standing
Counsel. In this case also, the employee
was in police service and he was convicted
of offence under Section 302 IPC read with
Section 120B IPC. The Single Judge
relying on the law laid down by the
Supreme Court in Tulsi Ram Patel (supra)
and another judgement in Shankar Dass
vs. Union of India, 1985 (2) SCR 358,
held that department had failed to consider
the conduct of the employee, which has led
to his conviction, while passing the order of
punishment. Consequently, the same was
declared to be unsustainable in law. The
Division
Bench,
in
appeal,
after
considering the law laid down by the
Supreme Court in Tulsi Ram Patel (supra)
and
Shankar
Das
(supra)
and
also
subsequent judgements of the Supreme
Court in Deputy Director of Collegiate
Education (Administration), Madras vs.
S. Nagoor Meera, (1995) 3 SCC 377 and
Government of A.P. and Another vs. B.
Jagjeevan Rao, 2014 7 SCALE 434, held
that the two subsequent decisions would
apply to the facts of that case. The Division
Bench, thereafter, considered the conduct
of the employee, which had led to his
conviction i.e., his involvement in heinous
crime under Section 302 IPC read with
Sections 120B and 149 IPC and, thereafter,
concluded as follows:

"We are of the view that the
principle of law which has been laid down
by the Supreme Court in the decision in S.
Nagoor Meera and recently in B. Jagjeevan
Rao's case, (supra) must govern the facts of
the present case. The respondent was a
constable in the police and was convicted
of a heinous crime punishable under
Section 302 of the Penal Code read with
Sections 120B and 149. Can the State be
compelled or required to take back in
service such a person, pending the disposal
of the appeal? Plainly not. The learned
counsel appearing on behalf of the
respondent sought to distinguish those two
decisions on the ground that the employee
had been convicted of offences under the
Prevention of Corruption Act 1988 where
the conduct had a direct bearing on the
service of the employee as an officer of the
State. In our view, this would not make any
difference to the construction of clause (a)
of the second proviso to Article 311. What
clause (a) of the second proviso does is to
stipulate that the requirement of clause (2)
of holding an inquiry consistent with the
principles of natural justice would not
apply where a person is dismissed,
removed or reduced in rank on the ground
of conduct which had led to his conviction
on a criminal charge, In the present case,
the respondent was a constable in the
police. He was found guilty after a session's
trial of an offence punishable under Section
302 read with Section 120B of the Penal
Code. In such a case, clause (a) of the
second proviso to Article 311 (2) would
clearly stand attracted. The State cannot be
regarded as having acted with perversity in
dismissing
a
person
who has
been
convicted of a serious offence of the nature
740 INDIAN LAW REPORTS ALLAHABAD SERIES
involved in pursuance of the provisions of
the second proviso to Article 311 (2) and,
as in the present case, under Rule 8(2)(a)
which is pari materia. The learned Single
Judge, with respect, was in error in holding
that there was no application of mind to the
conduct which has led to the conviction.
The conduct of the respondent which has
led to the conviction of a charge under
Section 302 cannot, by any circumstance,
be regarded as warranting any treatment
other than the punishment of dismissal
under clause (a) of the second proviso to
Article 311 (2) or under Rule 8(2)(a).
Ultimately, as has been held by the
Supreme Court until the conviction is set
aside by an appellate or higher court, it
would not be advisable to retain such a
person in service. If he succeeds in the
appeal or in any other proceeding, the
matter can always be reviewed in such a
manner that he would not suffer any
prejudice."

(emphasis supplied)

14. Before applying the principles of
law to the facts of the instant case, we also
take note of another Division Bench
judgement in case of Sadanand Mishra vs.
State of U.P. and Another in Writ
Petition No.2464 of 1991 (SB) dated
03.12.1992, particularly paragraphs 18 and
20, cited by counsel for the contesting
respondent. In paragraph 18 of the
judgement, there is quotation from the
judgement of the Supreme Court in Tulsi
Ram Patel (supra), which is reproduced
below for ready reference:

"Not much remains to be said
about Clause (a) of the Second Proviso to
Article 311(2). To recapitulate briefly,
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 such as warrants the
imposition of a penalty and, if so, what that
penalty should be. For that purpose it will
have to peruse the judgment of the criminal
court and consider all the facts and
circumstances of the case and the various
factors set out in Challapan Case. This,
however, has to be done by it ex-parte and
by itself. Once the disciplinary authority
reached to conclusion that the government
servants' conduct was such as to require
dismissal or removal from service or
reduction in rank he must decide which of
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 on 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.
A government servant who is aggrieved by
the penalty imposed can agitate in appeal,
revision or review, as the case may be, that
the penalty was too severe or excessive and
not
warranted
by
the
facts
and
circumstances of the case. If it is his case
that he is not the government servant who
has been in fact convicted he can also
agitate this question in appeal, revision or
review. If he fails in the departmental
remedies and still wants to pursue the
matter, he can invoke the court's power of
judicial review subject to the court
permitting it. If the court finds that he was
not in fact the person convicted it will
strike down the impugned order and order
him to be reinstated in service. Where the
court finds that the penalty imposed by the
11 All. State Of U.P. & Ors. Vs. Dhirendra Singh Yadav, Police Inspector
741
impugned order is arbitrary or grossly
excessive or out of all proportion to the
offence committed or not warranted by the
facts and circumstances of the case or the
requirements of the particular government
service the court will also strike down the
impugned order. Thus, in Shanker Dass v.
Union of India this Court set aside the
impugned order of penalty on the ground
that the penalty of dismissal from service
imposed upon the appellant was whimsical
and ordered his reinstatement in service
with full back wages. It is, however not
necessary that the court should always
order reinstatement. The court can instead
substitute a penalty which in its opinion
would
be
just
and
proper
in
the
circumstances of the case." (emphasis
supplied)

15. In paragraph 20, the principles laid
down by the Supreme Court for exercise of
power under Article 311(2) have been
summarized as follows:

"The principles enunicated by
Hon'ble the Supreme Court are:

(1) On the conviction of an
employee on a criminal charge, the order of
punishment cannot be passed unless the
conduct which had led to his conviction is
also considered.

(2) The scrutiny or examination
of conduct of an employee leading to his
conviction is to be done ex-parte and an
opportunity of hearing is not to be provided
for this purpose to the employee."

16. Thus, the disciplinary authority for
exercising power under the second proviso
to Article 311(2) of the Constitution or the
service rules, has to take into consideration
the conduct of the employee, which has led
to his conviction. The said consideration
has to be made on basis of the factors setout by the Supreme Court in Divisional
Personnel Officers vs. T.R. Chellappan,
1975 AIR 2216 (SC). These are as follows:

"It is obvious that in considering
this matter the disciplinary authority will
have to take into account the entire conduct
of the delinquent employee, the gravity of
the misconduct committed by him, the
impact which his misconduct is likely to
have on the administration and other
extenuating circumstances or redeeming
features if any present in the case and so on
and so forth. It may be that the conviction
of an accused may be for a trivial offence
as in the case of the respondent T. R.
Chellappan in Civil Appeal No. 1664 of
1974 where a stern warning or a fine would
have been sufficient to meet the exigencies
of service. It is possible that the delinquent
employee may be found guilty of some
technical offence, for instance, violation of
the transport rules or the rules under the
Motor Vehicles Act and so on, where no
major penalty may be attracted. It is
difficult to lay down any hard an and fast
rules
as
to
the
factors
which
the
disciplinary authority would have to
consider, but I have mentioned some of
these factors by way of instances which are
merely illustrative and not exhaustive. In
other words, the position is that the
conviction of the delinquent employee
would be taken as sufficient proof of
misconduct and then the authority will have
to embark upon a summary inquiry as to
the nature and extent of the penalty to be
imposed on the delinquent employee and in
the course of the inquiry if the authority is
of the opinion that the offence is too trivial
or of a technical nature it may refuse to
impose any penalty in spite of the
conviction."
742 INDIAN LAW REPORTS ALLAHABAD SERIES

17.
Indisputably,
the
contesting
respondent was posted as Inspector in
District- Bijnor at the time of the incident
in the year 1992. The trial court in Sessions
Trial No. 1 of 2002 registered on basis of
the chargesheet submitted by the CBI under
Sections 120B, 302, 364/34 and 218 IPC
after full fledged trial and due opportunity
to the contesting respondent and 16 other
persons, who were part of the same police
team, has recorded conviction against all of
them.
The
trial
court
has
recorded
categorical finding that the charge against
the contesting respondent and other police
personnel tried alongwith the contesting
respondent pertaining to abduction and
murder of Jaswinder Singh @ Jassa son of
Bachan Singh have been proved beyond all
reasonable doubt. The trial court, while
considering
the
question
relating
to
sentence, has further recorded a finding that
the offences committed by the contesting
respondent and other co-accused persons
were of a heinous nature. The accused
persons, who are defenders of law, have
acted as criminals and murderers in killing
an innocent person in a fake encounter. It
was a setback to the fight of the nation
against terrorism. It has also caused serious
dent to the image of the police department.
The trial court has further observed that
police officers, who carry out fake
encounters, defeat the legitimate claim of
those, who are involved in actual fight
against terrorism and are genuinely entitled
to promotions and recognitions.

18. We have also gone through the
judgement of this court dated 22.10.2020 in
Criminal Appeal No.1594 of 2012 and
other connected appeals filed by the
contesting respondent and other co-accused
persons against the judgement of the trial
court. This court has dismissed the appeals,
concurring with the findings recorded by
the trial court both on conviction and
sentence.
Although,
the
contesting
respondent is stated to have filed criminal
appeal
before
the
Supreme
Court
challenging the judgement of this court in
criminal appeal and wherein bail has also
been granted to the contesting respondent
on ground of parity with the other coaccused persons, but the fact remains that
the order of conviction passed by the trial
court, as upheld in the criminal appeal, still
holds good.

19. The disciplinary authority while
passing the order of dismissal dated
16.02.2015 has duly taken notice of the
entire background facts, the specific
charges against the contesting respondent,
the order of conviction by the trial court
and has, thereafter, held that the conduct of
the contesting respondent was utterly
inhumane, abuse of official powers, selfserving, against public interest and interest
of society. Such an act, done in guise of his
official position as a police officer (part of
disciplined force), had caused a serious
dent to the image of the police department.
The order of the disciplinary authority
dismissing the contesting respondent from
service shows full application of mind to
the facts of the case and the conduct of the
contesting respondent, which has led to his
conviction.

20. The disciplinary authority while
passing the order of dismissal of the
contesting respondent has taken recourse to
Clause (b) of sub-rule (4), which provides
that in case where a person is convicted by
the court for an offence involving ?moral
turpitude?, dismissal should follow unless
the punishing authority for reasons to be
recorded in writing considers it otherwise.
The said provision is not an independent
provision but only regulates the exercise of
11 All. Archana Gautam Vs. State of U.P.
743
power under the proviso to sub-rule (2) of
Rule 8. Thus, in case of conviction for
offence
involving
moral
turpitude,
ordinarily dismissal has to follow unless
there exists any special reason and which is
to be recorded in writing. The findings
returned by the disciplinary authority,
though, does not specifically uses the
phrase 'moral turpitude' but also does not
leave any manner of doubt that the same
amounted to moral turpitude of the highest
degree. We find absolutely no illegality or
perversity in the order of the disciplinary
authority awarding the punishment of
dismissal. The learned Single Judge has not
referred to the facts of the case nor has
examined the findings of the trial court
relating to the conduct of the contesting
respondent, which has led to his conviction
and merely by placing reliance on two
previous judgements which, as noted
above, were based on facts of those
particular
cases,
has
quashed
the
punishment order.

21. In our considered opinion, the
order of learned Single Judge 27.02.2025
corrected vide order dated 15.04.2025 is,
therefore, unsustainable in law and is,
accordingly, set aside.

22. The appeal is allowed.

23. Consequently, the writ petition
stands dismissed.

24. No order as to costs.
----------
(2025) 11 ILRA 743
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.11.2025

BEFORE

THE HON'BLE AMITABH KUMAR RAI, J.
Writ - A No. 2878 of 2004

Archana Gautam ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
B.N. Pandey, Arun K Shukla