LAKSHAY CHAUHAN vs THE STATE OF HP AND OTHERS
- Court
- High Court of Himachal Pradesh
High Court of H.P.
2026:HHC:31438
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 6783 of 2026 a/w
CWP No. 2077 of 2026
Reserved on:- 02.07.2026
Decided on: 29 .07 .2026
Uploaded on: 29 .07.2026
CWP No. 6783 of 2026
Gaurav Verma … Petitioner
Versus
State of Himachal Pradesh and others … Respondents
CWP No. 2077 of 2026
Sh. Lakshay Chauhan … Petitioner
Versus
State of Himachal Pradesh and others … Respondents
Coram
Hon’ble Mr. Justice Ajay Mohan Goel, Judge.
1
Whether approved for reporting? Yes
___________________________________________________________________
CWP No. 6783 of 2026
For the petitioner : Mr. K.D. Shreedhar, Senior Advocate
with Ms. Sneh Bhimta, Advocate.
For the respondents : Mr. Anup Rattan, Advocate General
with Ms. Swati Diliak, Deputy
Advocate General.
CWP No. 2077 of 2026
For the petitioner : M/s Onkar Jairath, Senior Advocate
with M/s Piyush Mehta and Anshul
Jairath, Advocates.
For the respondents : Mr. Anup Rattan, Advocate General
1
Whether reporters of the local papers may be allowed to see the judgment?
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with Ms. Swati Diliak, Deputy
Advocate General.
:
Ajay Mohan Goel, Judge
As common issues of law and fact are involved in these
cases, they are being disposed of vide a common judgment.
2. By way of CWP No. 6783 of 2026, the petitioner has
approached this Court inter alia praying for the following reliefs:-
“I. Issue a writ of certiorari for quashing the impugned order dated
12.01.2026 of the DGP and order dated 15-01-2026 of the
Commandant 4th IRBn Jangalberi H.P being illegal and
unconstitutional;
II. Issue a writ of mandamus, order or direction commanding the
respondents to reinstate the petitioner in service w.e.f. his order of
discharge dated 12-01-2026 with all consequential benefits;”
3. In CWP No. 2077 of 2026, the petitioner has inter alia
prayed for the following reliefs:-
“i. That this Hon'ble Court may be pleased to issue there Writ
in the nature of Certiorari or any other appropriate writ, order or
direction may kindly be issued quashing and setting aside the
impugned order dated 13.01.2026 (Annexure P-7), wherein he has
dismissed from service with immediate effect on the ground of
conduct which led to the conviction on the criminal charge.
ii. That this Hon'ble Court may be pleased to issue the Writ in
the nature of mandamus or any other appropriate writ, order or
direction, directing the Respondent to allow the Petitioner to serve
as Constable bear Constabulary No. 710 of District Shimla or in
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alternative directions may be given to Respondent No. 1 to decide
the statutory appeal in a time bound manner.
iii. That the respondents may be directed to produce the entire
record of the case for the kind perusal of this Hon'ble Court.”
4. In brief, facts of both these cases are as under:
Petitioner Gaurav Verma (petitioner in CWP No.6783 of
2026) was appointed as a Constable in the year 2009. In the year
2016, while posted at BSL Project Security, Sunder Nagar, an FIR
was lodged against him, i.e. FIR No. 59 of 2016, dated 25.02.2016, at
Police Station Balh, under Section 20 of the Narcotic Drugs and
Psychotropic Substances Act (NDPS Act), on the allegation that
charas, weighing 1003 grams was recovered from him. A
departmental inquiry was initiated against the petitioner under Rule
16.24 of the Punjab Police Rules, 1934, as applicable to the
Himachal Pradesh Police. The petitioner was suspended from
service. It is further the contention of the petitioner that the
petitioner preferred an Original Application No.2237 of 2016 before
the erstwhile Himachal Pradesh Administrative Tribunal against the
departmental inquiry and the learned Tribunal stayed the
departmental proceedings. In terms of the averments made in the
writ petition, the matter was still pending adjudication before this
Court as the Original Application, after the abolition of learned
Tribunal, was transferred to the High Court and registered as
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CWPOA No. 7210 of 2019. It is further the case of the petitioner that
in the Trial that took place pursuant to the lodging of FIR, learned
Special Judge, Mandi, convicted the petitioner for commission of
offence under the provisions of the NDPS Act and sentenced him to
undergo imprisonment for a period of three years and to pay fine of
₹ 25,000. According to the petitioner, he has preferred an appeal
against the judgment of conviction, which is pending adjudication
and the sentence imposed upon him stands stayed by this Court in
terms of order Annexure P-7.
5. The grievance of the petitioner is that in terms of the
impugned order dated 12.01.2026, by wrongly invoking the
provisions of Article 311(2)(a) of the Constitution of India and by
assuming the role of a disciplinary authority, the Director General of
Police has dismissed him from service under Section 63 of the HP
Police Act, 2007, which as per him is bad in law.
6. The case of petitioner Lakshay Chauhan (petitioner in
CWP No. 2077 of 2026) is that he was appointed as a Constable in
the year, 2015 under the sports persons quota. In 2019, an FIR was
registered against him, i.e. FIR No. 84 of 2019, alongwith other
accused under Sections 21, 25, and 29 of the NDPS Act and Section
192 of the Motor Vehicles Act at Police Station Bhuntar, District
Kullu, Himachal Pradesh. It is also the case of this petitioner that
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the Court of learned Special Judge-II, Kinnaur at Rampur Bushahr,
H.P. convicted the petitioner in terms of the judgment (Annexure P-
5), dated 26.12.2023. In the Criminal Appeal preferred by the
petitioner before this Court, the sentence imposed upon him has
been suspended.
7. The grievance of the petitioner is that in terms of the
impugned order dated 13.01.2026 (Annexure P-7), the Director
General of Police, by wrongly invoking the provisions of Article
311(2)(a) of the Constitution of India and by assuming the role of a
disciplinary authority, has dismissed him from service under
Section 63 of the HP Police Act, 2007, which as per him is bad in
law.
8. Mr. K.D. Shreedhar, learned Senior Counsel
representing petitioner Gaurav Verma and Mr. Onkar Jairath,
learned Counsel representing petitioner Mr. Lakshay Chauhan
contended on behalf of the petitioners that the impugned orders
passed by the Director General of Police whereby the services of the
petitioners were dismissed, without holding of an enquiry, by
invoking the provisions of Article 311(2)(a) of the Constitution of
India were totally unjust and not sustainable in the eyes of law. It
was submitted by the learned counsel that the Director General of
Police, not being the disciplinary authority, did not have any
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jurisdiction to pass the impugned orders. They also argued that the
law laid down by the Hon’ble Supreme Court of India in Union of
India vs. Tulsiram Patel, (1985) 3 Supreme Court Cases, 398, has
not been followed by the Authority while passing the impugned
orders. Learned counsel also submitted that the Director General of
Police, not being the competent authority to pass the impugned
orders, renders the orders per se bad in law and therefore, the same
are liable to be set aside on this count only. Learned Counsel further
argued that while passing the impugned orders, the Authority not
only ignored the judgment of the Hon’ble Supreme Court in Tulsiram
Patel's case (supra), but also the DOPT OM dated 25.11.2022, which
stands appended with the petitions. It was also argued on their
behalf that after conviction of the petitioners, they were continuing
to perform their duties and there was nothing remiss on their part
as far as the performance of their duties is concerned. They
submitted that under these circumstances, it was incumbent upon
the Authority to have had at least assessed the conduct of the
petitioners before passing the impugned orders, however, the
parameters laid down by the Hon’ble Supreme Court in invoking
Article 311(2)(a) of the Constitution of India have been completely
ignored by the Director General of Police while passing the impugned
orders. It was also argued that in the light of the fact that the
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sentence imposed upon the petitioners was suspended by this Court
in the respective appeals preferred by them, the act of dismissing
the services of the petitioners is not sustainable.
9. On the other hand, learned Advocate General has
argued that as Article 311(2)(a) of the Constitution of India conferred
the power upon the competent authority to dismiss the services of
an employee without holding an inquiry in the case of conviction
and, no illegality can be attributed to the orders passed by the
Director General of Police, who, in terms of the orders under
challenge, has dismissed the services of the petitioners, on their
conviction for having committed offences under the provisions of the
NDPS Act by the competent Court of law. Learned Advocate General
argued that the petitioners, being employees of the disciplined force,
should have been conscious of their conduct and as their conviction
under the NDPS Act obviously maligns the reputation of the Police
Department as well, the dismissal of their services is the right act
that has been done by the Director General of Police. Learned
Advocate General also argued that suspension of sentence in appeal
by this Court cannot come to the rescue of the petitioners for the
reason that the suspension of sentence does not ipso facto mean that
the conviction has also been stayed. Learned Advocate General
submitted that the petitioners, as of today, stand convicted for
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commission of offenses under the NDPS Act, therefore, the rigours
of holding an enquiry before the dismissal of the services were not
attracted in the matter. Learned Advocate General also submitted
that taking into consideration the gravity of the allegations levelled
against the petitioners and the factum of their having been convicted
under the provisions of the NDPS Act, the act of dismissal of the
petitioners from service calls for no interference by this Court.
Learned Advocate General also submitted that the Director General
of Police, being a superior authority than the disciplinary authority
or the appointing authority of the petitioners, is empowered under
the Punjab Police Rules, as are applicable to the State of Himachal
Pradesh, as far as taking of disciplinary action against the
petitioners is concerned. Accordingly, he submitted that as there is
no merit in the present petitions, the same be dismissed.
10. I have heard learned Senior Counsel as well as learned
Counsel for both the petitioners as also learned Advocate General
and have also carefully gone through the pleadings of both the
petitions as well as documents appended therewith.
11. The moot issue for the purpose of adjudication before
this Court is as to whether, in the peculiar facts of these cases, the
Director General of Police could have dismissed the petitioners from
service without holding an inquiry under Article 311 of the
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Constitution of India and further whether the Director General of
Police was authorized in law to take such an action against the
petitioners or not?
12. Article 311 of the Constitution of India deals with
dismissal, removal or reduction in rank of persons employed in civil
capacities under the Union or a State. The provisions of this Article
state as under:-
“311. Dismissal, removal or reduction in rank of persons employed
in civil capacities under the Union or a State-
(1) No person who is a member of a civil service of the Union or an
all India service or a civil service of a State or holds a civil post
under the Union or a Slate shall be dismissed or removed by a
authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or
reduced in rank except after an inquiry in which he has been
informed of the charges against hi m and given a reasonable
opportunity of being heard in respect of those charges;
Provided that where it is proposed after such inquiry, to impose
upon him any such penalty, such penalty may be imposed on the
basis of the evidence adduced during such inquiry and it shall not
be necessary to give such person any opportunity of making
representation on the penalty proposed:
Provided further 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
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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 inquiry; or
(c) where the President or the Governor, as the case may be, is
satisfied that in the interest of the security of the State, it is not
expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises
whether it is reasonably practicable to hold such inquiry as is
referred to in clause (2), the decision thereon of the authority
empowered to dismiss or remove such person or to reduce him in
rank shall be final.”
13. In terms of Article 311 (2), no person shall be dismissed
or removed or reduced in rank except after an inquiry, in which he
has been informed of the charges levied against him and given a
reasonable opportunity of being heard in respect of those charges.
However, second proviso to Article 311 (2) provides that said Clause
shall not apply in following circumstances: -
“(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 reduce him in rank is satisfied that for some reason, to be
recorded by that authority in writing, it is not reasonably
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practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is
satisfied that in the interest of the security of the State it is not
expedient hold such inquiry.”
14. In the present case, sub-clause (b) and Sub-clause (c)
have no applicability.
15. The Director General of Police has exercised his power in
terms of the provisions of clause (a) of the second proviso to Article
311(2) of the Constitution of India, which provides that the rigours
of Article 311(2) of the Constitution of India, that no person shall be
dismissed or removed or reduced in rank, except after an inquiry,
shall not apply 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.
16. Hon’ble Supreme Court of India in Union of India and
another vs. Tulsiram Patel , 1985 (3) Supreme Court Cases 398,
qua the applicability of clause (a) of the second proviso to Article
311(2) of the Constitution of India, has been pleased to hold as
under:
“127. 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
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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 Challappan case. This, however, has
to be done by it ex parte 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 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 of the case. was too
severe or excessive and not warranted by the facts and
circumstances 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 impugned
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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 that particular government
service the court will also strike down the impugned order. Thus, in
Shankar 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.”
17. Thus, it is evident from the reading of this paragraph
of the judgment of Hon’ble Supreme Court of India that where a
Disciplinary Authority comes to know that a government servant
has been convicted in a criminal charge, then said authority must
consider whether the conduct of the incumbent which has led to
his conviction is such that it warrants the imposition of a penalty,
and if so, then what that penalty should be. Hon’ble Supreme
Court has also held that for this purpose, the authority has to
peruse the judgment of the criminal Court and consider all the
facts and circumstances of the case and various factors set out by
the Hon’ble Supreme Court in Challappan's case. This, however,
has to be done by the authority itself without involving the
incumbent concerned and once the disciplinary authority reaches
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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 of these three penalties should be
imposed on him. Hon’ble Supreme Court has also held that this too
has to be done by the authority itself and without hearing the
concerned government servant by reason of the exclusionary effect
of the second proviso. Hon’ble Supreme Court also held that the
disciplinary authority must, however, bear in mind that a
conviction on a criminal charge does not automatically entail
dismissal, etc. and having decided which of the three penalties are
required to be imposed, it has to pass the requisite order.
18. This Court would also like, at this stage, to refer to
Office Memorandum dated 25.11.2022, appended as Annexure P-
13 with CWP No. 6783 of 2026, which is in continuation of the
earlier OM dated 11.11.1985, which was issued by the Government
of India, Ministry of Personnel, Public Grievances and Pensions,
Department of Personnel and Training, after the passing of the
judgement by the Hon’ble Supreme Court in Union of India vs.
Tulsiram Patel and others (supra).
19. In this Office Memorandum, with regard to action
under clause (a) of the second proviso to Article 311(2) of the
Constitution of India, the following is mentioned:
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“6. When action is taken under clause (a) of the second
proviso to Art. 311(2) of the Constitution or rule 19(i) of the CCS
(CC&A) Rules, 1965 or any other service rule similar to it, the first
pre-requisite is that the disciplinary authority should be aware that
a government servant has been convicted on a criminal charge. But
this awareness alone will not suffice. Having come to know of the
conviction of a government servant on a criminal charge, the
disciplinary authority must consider whether his conduct, which
had led to his conviction, was such as warrants the imposition of a
penalty and if so, what that penalty be. For that purpose, it will
have to peruse the judgement of the criminal court and consider all
the facts and circumstances of the case. In considering the 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. This, however, has to be done by the
disciplinary authority by itself. Once the disciplinary authority
reaches the conclusion that the government servant's conduct was
blameworthy and punishable, it must decide upon the penalty that
should be imposed on the government servant. This too has to be
done by the disciplinary authority by itself. The principle, however,
to be kept in mind is that the penalty imposed upon the civil
servant should not be grossly excessive or out of all proportion to
the offence committed or one not warranted by the facts and
circumstances of the case.
[Para 4 of the OM No. 11012/11/85-Estt. (A) dated 11.11.1985]
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7. After the competent authority passes the requisite orders as
indicated in the preceding paragraph, a government servant who is
aggrieved by it 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 person who was in fact, convicted, he can
also agitate this question in appeal, revision or review. If he fails in
all the departmental remedies available to him and still wants to
pursue the matter, he can seek judicial review. The court (which
term will include a Tribunal having the powers of a Court) will go
into the question whether the 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 service to which the government
servant belongs.”
20. The orders that have been passed by the Director
General of Police, dismissing the petitioners from service, read as
under:
“In CWP No. 6783 of 2026
ORDER
Whereas, a case FIR No. 59/2016 dated 25.02.2016 was
registered at Police Station Balh, District Mandi, under Section 20 of
the NDPS Act 1985 against Constable Gaurav Verma, No. 265 of
4th Indian Reserve Battalion (IRBn.), Jangalberi (hereinafter
referred to as the delinquent official), wherein 1003 grams of
Charas (commercial quantity) was recovered from his conscious
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possession. On completion of the investigation of the above case,
chargesheet has been put in before the Ld. Court of Special Judge,
Mandi, Division Mandi, H.P. on 31.05.2016.
Whereas, after a full-fledged criminal trial conducted in accordance
with law, the delinquent official has been convicted by the Learned
Sessions Judge, Mandi, vide judgment dated 08.11.2024, for the
offence punishable under Section 20 of the NDPS Act, 1985 in the
aforesaid FIR; and
Whereas, the Hon'ble High Court of Himachal Pradesh has, during
the pendency of the Criminal Appeal No. 659 of 2024. ordered.
suspension of the order of sentence dated 02.12.2024 passed by
the Ld. Trial Court. It is, however, evident from the said order that
no stay has been granted on the conviction recorded by the Ld.
Trial Court, which continues to subsist.
Whereas, the undersigned has carefully examined the judgment of
conviction dated 08.11.2024, the nature and gravity of the offence
proved, the quantity and character of the contraband involved, and
the findings recorded by the criminal court; and
Whereas, Article 311(2)(a) of the Constitution of India provides that
where a Government servant is dismissed or removed on the
ground of conduct which has led to his conviction on a criminal
charge, the requirement of holding a departmental enquiry or
issuing a show cause notice shall not apply; and
Whereas, Section 63 of the Himachal Pradesh Police Act, 2007,
provides that a police officer of a rank superior to that of a
Constable may himself perform any duty assigried by law or by a
lawful order to any subordinate officer, and may aid, supplement,
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supersede, or prevent the action of such subordinate whenever it
appears necessary or expedient for effective enforcement of law or
for preventing any infringement thereof; and
Now, therefore, in exercise of the powers conferred under Article
311(2)(a) of the Constitution of India, and section 63 of the
Himachal Pradesh Police Act 2007, the undersigned, being the
competent authority, hereby dismisses Constable Gaurav Verma,
No. 265, 4th IRBn., Jangalberi, District Hamirpur from service with
immediate effect, on the ground of conduct which has led to his
conviction on a criminal charge.
It is further ordered that the dismissal shall entail forfeiture of
service benefits, except those, if any, which may be admissible
under the relevant rules.”
In CWP No. 2077 of 2026
ORDER
Dated 13.01.2026
Whereas, a case FIR No. 84/2019 dated 18.11.2019 under
Sections 21, 25 and 29 of the NDPS Act was registered at Police
Station Brow, District Kullu, against Constable Lakshay No. 710 of
District Shimla (hereinafter referred to as the delinquent official)
and others. On completion of the investigation of the above case,
charge sheet was put up before the learned Special Judge-II,
Kinnaur at Rampur Bushahr, H.P. on 10.07.2020 in accordance
with law.
Whereas, after a full-fledged criminal trial conducted strictly in
accordance with law, the delinquent official stands convicted by the
competent criminal court, namely the learned Special Judge-II,
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Kinnaur at Rampur, vide judgment dated 26.12.2023, for offences
punishable under the NDPS Act, 1985 in the aforesaid FIR; and
Whereas, the Hon'ble High Court of Himachal Pradesh, during the
pendency of Criminal Appeal No. 15 of 2024, ordered suspension of
the order of sentence dated 01.01.2024 passed by the learned
Special Judge-II, Kinnaur at Rampur Bushahr, District Shimla, H.P.
It is, however, evident from the said order that no stay has been
granted on the conviction recorded by the learned Trial Court,
which continues to subsist.
Whereas, the undersigned has carefully examined the judgment of
conviction dated 26.12.2023, the nature of the offences proved
against the delinquent official, the quantity and character of the
contraband involved, and the findings recorded by the learned Trial
Court; and
Whereas, Article 311(2)(a) of the Constitution of India provides that
where a Government servant is dismissed or removed on the
ground of conduct which has led to his conviction on a criminal
charge, the requirement of holding an inquiry under Article 311(2)
shall not apply; and
Whereas, Section 53 of the Himachal Pradesh Police Act, 2007,
provides that a police officer of a rank superior to that of a
Constable may himself perform any duty assigned by law or by a
lawful order to any subordinate officer and may aid, supplement,
supersede, or prevent the action of such subordinate whenever it
appears necessary or expedient for effective enforcement or for
preventing any infringement thereof; and
Now, therefore, in exercise of the powers conferred under Article
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311(2)(a) of the Constitution of India and Section 63 of the
Himachal Pradesh Police Act, 2007, the undersigned, being the
competent authority, hereby dismisses Constable Lakshay No. 710
of District Shimla from service with immediate effect, on the ground
of conduct which has led to his conviction on the criminal charge.
It is further ordered that the dismissal shall entail forfeiture of
service benefits, except those, if any, which may be admissible
under the relevant rules.”
21. Before proceeding any further, at this stage itself, the
Court would first like to answer the issue as to whether the
impugned orders are non est , as has been urged by the learned
Senior Counsel for the petitioners on the plea that the Director
General of Police, not being the disciplinary authority or the
appointing authority of the petitioners, was not competent to pass
the orders.
22. The petitioners herein are the employees of the Police
Department. They are governed by the provisions of the Punjab
Police Rules, 1934, as are applicable to the State of Himachal
Pradesh. Departmental proceedings are envisaged in Rule 16.24 of
the said Rules.
23. Chapter-16 of the Punjab Police Rules, 1934, as is
applicable to the State of Himachal Pradesh provides for
‘punishments’. Rule-16.1 of the said Rules provides for ‘Authorized
punishments’. Sub-Rule of Rule-16.1 provides that no Police
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Officer shall be departmentally punished otherwise than as
provided in the said Rules and Sub-Rule (2) thereof provides that
the departmental punishments mentioned in the second column of
the subjoined table may be inflicted on officers of the various ranks
shown in the heading Nos. 3 to 6, by the officers named below each
heading in each case, or by any officer of higher rank. The Rule
provides as under:-
“16.1 Authorized punishment.-(1) No police officer shall be
departmentally punished otherwise than as provided in these
rules. (2) The departmental punishments mentioned in the second
column of the subjoined table may be inflicted on officers of the
various ranks shown in the heading Nos. 3 to 6, by the officers
named below each heading in each case, or by any officer of higher
rank-
1 2 3 4 5 6
Sr. No. Departmental
Punishment
Inspectors Sergeants, Sub- Inspectors
and Assistant Sub
Inspectors
Head Constables Constables
Dismissal Deputy General, Inspector-
General, Government
Railway Inspectors-Assistant
Police, the Assistant
Inspector-General, Provincial
Addit-ional Police, designated
as Commandant, Provincial
Additional Police, and the
Assistant Inspector-General
of Police (Traffic)
Superintendents of Police
Commandants of Punjab
Armed Police and
Superintendent
(Administrative), Deputy
Government Railway
Police.
Superintendent Police;
Superintendent
(Administrative). of Deputy
Superintendents of
Police, Deputy
Superintendent
(Administrative),
Government Railway
Police; Deputy
Superintendents charge
of Railway Police in Sub-
Divisions; Senior
Assistant in-charge of
Recruits Training
Centres. Superintendent
Police, Lahore; Officer-of
Deputy Superintendent of
Police, Lahaul and Spiti.
Government Railway Police;
Superintendents Deputy
Assistant incharge of Railway
Police Sub-Divisions; Senior
Superintendent of Police,
Lahore; Officers-in-charge of
Police Constables Training
Centres. Deputy
Superintendent of Police,
Lahaul and Spiti
24. The petitioners before this Court are Inspector and
Constables, respectively. The punishment of dismissal can be
imposed upon an Inspector, by a Deputy Inspectors-General or any
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Officer of higher rank. Similarly, the punishment of dismissal can
be imposed upon a Constable by the Superintendent of Police or by
any officer of higher rank. Herein, the punishment of dismissal has
been imposed upon the petitioners by the Director General of
Police, who obviously is an Officer of higher rank than the one
envisaged in Rule 16.1.
25. Therefore, in light of the fact that the Punjab Police
Rules do empower the Director General of Police to impose the
punishment of dismissal on the petitioners, being an Officer of
higher rank than the Officers shown in Headings 3 to 6 (supra),
this Court finds no merit in the contention of learned Senior
Counsel for the petitioners that the Director General of Police could
not have had passed the impugned orders.
26. Now, this Court would be referring to the other aspect
of the matter as to whether, in the peculiar facts and
circumstances of these two cases, the orders passed by the
Director General of Police, dismissing the petitioners from service
are sustainable in the eyes of law or not.
27. A perusal of the orders of dismissal passed by the
Director General of Police demonstrates that it stands mentioned
therein that FIRs were registered against the petitioners under the
provisions of the NDPS Act. Thereafter, a full-fledged criminal trial
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was conducted in the matter as per law and the delinquent officials
were convicted by the learned Special Court for commission of
offenses punishable under the provisions of the NDPS Act. It has
also been observed in the orders that though the petitioners have
preferred appeals against the judgments of conviction and the High
Court has ordered the suspension of the sentence, but no stay has
been granted on the conviction recorded by the learned Special
Judge. Thereafter, the authority has also observed that it has
examined the judgment of conviction, the nature and gravity of the
offenses proved as also the quality and quantity of the contraband
involved and thereafter, by referring to the provisions of clause (a)
of the second proviso to Article 311(2) of the Constitution of India,
as also Section 63 of the Himachal Pradesh Police Act, 2007, it has
dismissed the petitioners from service with immediate effect on the
ground of conduct which has led to their conviction on criminal
charges.
28. In terms of the judgment of the Hon’ble Supreme
Court of India in Tulsiram Patel's case (supra) and also in terms of
the contents of the Office Memorandum, which has been issued in
the year 2022, in the matters relating to the applicability of clause
(a) of the second proviso to Article 311(2) of the Constitution of
India, what has to be taken into consideration by the authority is
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that it should be aware that the government servant has been
convicted on a criminal charge and the disciplinary authority
thereafter must consider whether the conduct of the government
servant which has led to his conviction, was such as it warrants
the imposition of penalty, and if so, then what penalty.
29. Applying these principles to the facts of this case,
obviously, the action under clause (a) to the second proviso to
Article 311(2) of the Constitution of India was resorted to by the
Director General of Police after he became aware that the
petitioners herein were convicted on criminal charges.
30. A perusal of the order of dismissal passed by the
authority demonstrates that it took into consideration the fact that
the petitioners were convicted under the provisions of the NDPS
Act, which obviously has severe gravity attached to it and after
taking into consideration the factum of the conviction of the
petitioners and that too for commission of offenses punishable
under the NDPS Act, the authority resorted to dismissing the
petitioners from service.
31. The above clearly demonstrates that the disciplinary
authority took into consideration the conduct of the petitioners,
i.e., them being involved in the commission of an offence under the
provisions of the NDPS Act, which led to their conviction.
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Obviously, the involvement of police Constables in commission of
offences under the NDPS Act, being a serious matter, the authority,
in the considered view of this Court, rightly ordered the dismissal
of the petitioners from service by invoking the provisions of clause
(a) of the second proviso to Article 311(2) of the Constitution of
India.
32. In the peculiar facts of these cases, it cannot be said
that the penalty imposed upon the petitioners is grossly excessive
or out of proportion, which are the factors to be taken into
consideration by the Authority while imposing the punishment.
33. Clause (a) of second proviso to Article 311(2) of the
Constitution of India authorizes the authority to dispense with the
inquiry and impose the punishments mentioned in the said clause
in the case of conviction.
34. The conviction of a government servant can be for
commission of various offenses. A government servant may be
convicted for rash and negligent driving or for having committed a
monetary offense, or in a case of physical scuffle with a third
person, etc., etc. It is in the backdrop of this fact that as obviously
all government officials are not going to be convicted for
commission of same or similar offenses, that safeguards have been
pointed out, both by the Hon’ble Supreme Court in Tulsiram Patel's
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judgment (supra) as well as by the Central Government in terms of
Office Memorandums of the year 1985 as well as of the year 2022.
However, providing of these safeguards, as have been enunciated
by the Hon’ble Supreme Court of India as also in the office
memorandums issued by the Central Government, have to be
applied in the factual matrix and circumstances of each and every
case.
35. It is in this backdrop that a caveat has been put that
while imposing penalty upon a civil servant, the authority has to
take into consideration the fact that the same should not be
grossly excessive or out of proportion to the offense(s) committed.
36. Herein, in the present two cases, the offence
committed is under the provision of the NDPS Act. The convicts
happen to be employees of the police department. In other words,
the constables of the police department themselves have been
convicted for the commission of offense under the provisions of the
NDPS Act. The protectors of law themselves have become violators
of law and those who have the onerous task placed upon
themselves to check offenses under the NDPS Act and ensure that
guilty are punished have been found indulging in the commission
of offenses under the provisions of the NDPS Act.
37. Herein, it is not a mere case of allegation, but a fact
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situation where both the petitioners have been convicted for having
committed offenses under the NDPS Act by the Court of law.
Therefore, this Court finds no infirmity in the orders under
challenge.
38. Hon’ble Supreme Court of India in Civil Appeal No.
1804 of 2020, titled Life Insurance Corporation of India vs. Mukesh
th
Poonamchand Shah, decided on 25 February, 2020, on the issue
as to whether clause (a) of the second proviso to Article 311(2) of
the Constitution of India can be resorted to during the pendency of
an appeal against the judgment of conviction, has been pleased to
hold as under:
“ 14 The position in this regard was elaborated upon in
a judgment of a two judge Bench decision of this Court in Dy
Director of Collegiate Education (Admn) v S Nagoor
Meera13 , where Justice B P Jeevan Reddy speaking for the
Court held:
“ 8. ... taking proceedings for and passing orders of dismissal,
removal or reduction in rank of a government servant who
has been convicted by a criminal court is not barred merely
because the sentence or order is suspended by the appellate
court or on the ground that the said government servant-
accused has been released on bail pending the appeal.” This
Court specifically disapproved of the view of the Tribunal
that until the appeal against the conviction was disposed of,
action under clause(a) of the second proviso to Article
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311(2) was not permissible. The Court held:
“ 10. What is really relevant thus is the conduct of the
government servant which has led to his conviction on a
criminal charge. Now, in this case, the respondent has
been found guilty of corruption by a criminal court.
Until the said conviction is set aside by the appellate or
other higher court, it may not be advisable to retain
such person in service. As stated above, if he succeeds
in appeal or other proceeding, the matter can always be
reviewed in such a manner that he suffers no
prejudice.” This view has been reiterated in another
two judge Bench decision of this Court in K C Sareen v
CBI14 . Justice K T Thomas, speaking for the Court,
held:
“ 12. ...When a public servant who is convicted of
corruption is allowed to continue to hold public office, it
would impair the morale of the other persons manning
such office, and consequently that would erode the
already shrunk confidence of the people in such public
institutions besides demoralising the other honest public
servants who would either be the colleagues or
subordinates of the convicted person. If honest public
servants are compelled to take orders from proclaimed
corrupt officers on account of the suspension of the
conviction, the fallout would be one of shaking the
system itself...”
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15. In State of Haryana v Balwant Singh15 , the
respondent, who was an employee of a public transport
corporation, caused a death as a result of his rash and
negligent driving. The Corporation had to suffer an award of
the Motor Accident Claims Tribunal. Following the
disciplinary enquiry, the employee was subjected to a
punishment of a reduction of pay to the minimum of the time
scale of a driver for four years. On the conviction of the
employee for offences under Sections 279, 337, 338 and 304A
of the Penal Code, his services were terminated. On this set of
facts, a two judge Bench of this Court, speaking through
Justice Shivaraj V Patil, rejected the argument based on the
principle of double jeopardy and held:
“ 7… there was no question of the respondent suffering a
double jeopardy. The aid of Article 20(2) of the
Constitution of India was wrongly taken. Article
20(2) of the Constitution of India does not get attracted
to the facts of the present case...” The Court held that
when a major penalty was proposed to be imposed on
the ground of the conduct of the employee which had led
to conviction on a criminal charge, it was not necessary
to take recourse of the provisions of Rules 7(1) and (2)
of the Haryana Civil Services (Punishment and Appeal)
Rules 1987 relating to the convening of an inquiry in
which a reasonable opportunity of showing cause would
have to be given.
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16. The decision in Lt Governor, Delhi v HC Narinder
Singh16 , relied upon by the respondent, is clearly
distinguishable. Unlike the present case, where the
respondent was convicted of various criminal offences and
subsequently, a notice to show cause was issued, in HC
Narinder Singh there was no conviction based on a criminal
charge. In the present case, following the conviction of the
respondent by the Special Judge CBI, the appellant was
acting within jurisdiction in issuing a notice to show cause
under Regulation 39(4) of the 1960 Regulations. The learned
single judge was correct in dismissing the special civil
application filed by the respondent challenging the notice to
show cause issued by the appellant. The judgment of the
Division Bench restraining the appellant from taking a final
decision on the show cause notice pending the disposal of the
criminal appeal has no valid basis in law.
17. We accordingly allow the appeal and set aside the
impugned judgment and order of the Division Bench dated 10
April 2018. As a consequence, we confirm the order and
judgment of the learned single judge dismissing the Special
Civil Application filed by the respondent. There shall be no
order as to costs.”
39. Thus, in terms of the said judgment of the Hon’ble
Supreme Court, the pendency of an appeal is also not an embargo
as far as invocation of the provisions of clause (a) of the second
proviso to article 311(2) of the constitution of India is concerned,
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as the Hon’ble Supreme Court has held that what is relevant was
the conduct of the government servant which led to his conviction
on a criminal charge and as the government servant had been
found guilty of corruption by a criminal Court, until said
conviction was set aside by the Appellate or higher Court, it might
not be advisable to retain such a person in service.
40. Accordingly, in light of the findings returned herein
above, as this Court does not find any infirmity or illegality in the
orders under challenge, in terms whereof the petitioners have been
dismissed from service, the present writ petitions being devoid of
any merit are dismissed. Pending miscellaneous application(s), if
any also stand disposed of accordingly.
(Ajay Mohan Goel)
Judge
July 29 , 2026
narender
( )
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