Hon’ble Sudhir Agarwal, J.—Heard Sri Vijay Gautam, learned counsel for the petitioner and learned Sanding Counsel for the respondents.

2. The only argument raised by learned counsel for the petitioner is that though it is true that he was convicted in Session Trial No. 183 of 2003, under Sections 498A, 304B, 201 IPC by Special Session Judge (E.C.Act), Mirzapur, he preferred a Criminal Appeal No. 6301 of 2007 wherein he was enlarged on bail but the disciplinary authority, in the meantime, has passed order dated 4.7.2007 in purported exercise of powers under U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as ‘’1991 Rules’) without considering at all the conduct led to conviction and whether petitioner was liable for punishment of dismissal or any other punishment. He vehemently contended that a bare perusal of impugned order itself shows that disciplinary authority has proceeded on the assumption that as soon as a Government servant is convicted, dismissal from service is natural consequence thereof and accordingly the impugned order has been passed.

3. Since learned counsel for the petitioner has raised a legal issue, learned Standing Counsel agreed that the writ petition be heard and disposed of finally on the basis of record of writ petition itself and with the consent of learned counsel for the parties, I proceed to decide this matter finally.

4. It is no doubt true that mere pendency of an appeal against an order of conviction does not bar imposition of punishment under Article 311 (2) (a) proviso of Constitution read with Rule 8(2) (a) of 1991 Rules and the disciplinary authority, on the basis of conduct led to conviction, may consider appropriate punishment, if any, liable to be imposed upon Government servant and without holding any departmental inquiry can impose such punishment, but it is also a settled exposition of law that punishment is not automatic and based on mere conviction but the order imposing punishment must show application of mind on the part of disciplinary authority on the conduct led to conviction of Government servant.

5. In the present case, the order passed by disciplinary authority does not show at all any consideration on the part of disciplinary authority that he has considered conduct of petitioner led to conviction and appropriate punishment ought to be awarded to the petitioner. On the contrary a bare reading of the order shows that disciplinary authority, on the assumption that dismissal is the natural consequence of conviction of petitioner in a criminal case, has passed the impugned order of dismissal.

6. The question whether the order must disclose application of mind on the part of disciplinary authority that it has considered conduct led to conviction of Government servant before passing punishment order is no more res integra.

7. In the case of Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416, Apex Court while considering pare materia provision under Article 311 of Constitution of India, held :

“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 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 justified 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 enquiry.” (Emphasis added)

8. A similar question came up for consideration before a Division Bench of this Court