JUDGMENT : Sudhanshu Dhulia, J. 1. Mr. G.D. Joshi, Advocate for the petitioner. 2. Mr. N.P. Sah, learned Standing Counsel for the State of Uttarakhand/respondents. 3. The petitioner who was a Constable in Uttarakhand Civil Police has challenged the orders of his dismissal before this Court. The dismissal of the petitioner is on the grounds that he has been convicted in a criminal offence under Section 338 IPC and sentenced for a period of two years rigorous imprisonment with a fine of Rs.1000/- and consequently the appointing authority invoking its power evidently under Rule 8(2)(a) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 dismissed the petitioner from service. 4. The petitioner as a young Constable had joined police service in the year 2005. One day he accidently fired from his service rifle, which injured a person. This consequently resulted in lodging of the first information report on the same day i.e. on 12.04.2010, under Section 308 IPC. In the trial court the findings which have come up are that petitioner went to a tea stall in Pithoragarh on 12.04.2010, and ordered a cup of tea. He had placed his service rifle on the table, and while unloading his rifle a fire was shot and as a result a person who was working in the tea stall was injured, as the bullet pierced his right palm. The trial court though framed charges against the petitioner under Section 308/326/338 IPC but ultimately it convicted the petitioner only under Section 338 IPC and sentenced him for two years rigorous imprisonment with a fine of Rs.1000/-. Section 338 IPC reads as under:- “Section 338. Causing grievous hurt by act endangering life or personal safety of others.—Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.” 5. After his conviction, the appointing authority dismissed him from services vide order dated 31.08.2013. In appeal, however, though the conviction of the trial court was upheld by the High Court, but the benefit of Section 4 of the Probation of Offenders Act was given to the petitioner, and was released under the above Act. After his conviction, the appointing authority dismissed him from services vide order dated 31.08.2013. In appeal, however, though the conviction of the trial court was upheld by the High Court, but the benefit of Section 4 of the Probation of Offenders Act was given to the petitioner, and was released under the above Act. There is a specific order to this effect. Since the sentence of two years of rigorous imprisonment was waived, the petitioner promptly moved an application before the appointing authority stating that he is liable to be given benefit of Section 12 of the Probation of Offenders Act (from hereinafter referred to as “the Act”) and since there is no “disqualification” now attached to him, he should be reinstated in service. The appointing authority after seeking a legal opinion in the matter rejected the representation of the petitioner vide order dated 21.01.2014 stating that the High Court has only changed the sentence and the conviction still remains and there is no order of the High Court of reinstating the petitioner in service, thus rejected his representation. Aggrieved, he has filed the present writ petition before this Court. 6. This entire case rests on interpretation of Section 12 of the Act. Section 12 of the Act reads as under:- “Section12. Removal of disqualification attaching to conviction.- Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law: Provided that nothing in this section shall apply to a person who, after his release under section 4 is subsequently sentenced for the original offence.” 7. The only ground in the petition is that once the disqualification attached to a conviction is wiped out in view of specific provision under Section 12 of the Act, there is no “disqualification” existing now against the petitioner and hence he is liable to be reinstated in service! 8. The learned Standing counsel for the State Mr. The only ground in the petition is that once the disqualification attached to a conviction is wiped out in view of specific provision under Section 12 of the Act, there is no “disqualification” existing now against the petitioner and hence he is liable to be reinstated in service! 8. The learned Standing counsel for the State Mr. N.P. Sah on the other hand reiterates reasons given in the impugned order and submits that the conviction of the petitioner on a criminal offence still remains and merely because the sentence of two years had been substituted no benefit under the Probation of Offenders Act can be given and the petitioner is not liable to be retained in service. 9. In view of this Court, the submission of the learned counsel for the petitioner rests on a total misreading of the provisions as contained under Section 12 of the Probation of Offenders Act, particularly that of the word “disqualification”. 10. It is trite to state that an order of a criminal court is divided into two parts. First is the order of conviction and second is the sentence imposed by the court on the findings of the conviction. All the Probation of Offenders Act seeks to do is that it grants a benefit to the convict as far as sentencing is concerned. It does not mean that the conviction itself has been wiped out. The conviction remains on record. 11. The first decisions of the Hon’ble Apex Court in its interpreting of Section 12 of the Probation of Offenders Act which we could find is in the case of Divisional Personnel Officer, Southern Railway Another Vs. T.R. Chellappan reported in (1976) 3 SCC 190 where the Hon’ble Apex Court while elaborating the provisions of Section 12 of the Act had held that even after the release of an offender under Section 12 of the Probation of Offenders Act conviction still remains. In fact, conviction is the sine qua non of the Act. “The order of release on probation is merely in substitution of the sentence to be imposed by the Court. This has been made permissible by the statute on a humanist ground in order to reform youthful offenders and to prevent them from becoming hardened criminals.” 12. In fact, conviction is the sine qua non of the Act. “The order of release on probation is merely in substitution of the sentence to be imposed by the Court. This has been made permissible by the statute on a humanist ground in order to reform youthful offenders and to prevent them from becoming hardened criminals.” 12. In the above judgment, while interpreting the provisions of Section 12 of the Probation of Offenders Act which state that a person who has been granted benefit of Section 3 or 4 of Probation of Offenders Act “shall not suffer disqualification, if any, attached to the conviction of an offence under the law”, have been examined. The Hon’ble Apex Court explains that the above provision means two things, firstly that there must be a disqualification resulting from a conviction and secondly that this disqualification must be provided by some law, other than Probation of Offenders Act. The benefit which is given under Section 12 of the Probation of Offenders Act is that the disqualification which results from a conviction will not apply after the benefit of the Probation of Offenders Act. Some statutes expressly provide for these disqualifications such as in Representation of the People’s Act, Company’s Act, etc. 13. It has further been elaborated by the Hon’ble Apex Court in the said judgment that the word “disqualification” should not be confused with the word “misconduct”. What has to be kept in mind is that though the disqualification attached to a conviction goes, yet the “misconduct” still remains, and therefore to say that merely because a person has got a benefit and has been released under the Probation of Offenders Act, the benefit of Section 12 of the Act would also mean that the disqualification which resulted in his removal or dismissal from service also goes away and he should be taken back in service, is not at all a correct view and is a total misreading of the word “disqualification”. 14. In the case of Harichand Vs. Director of School Education reported in AIR 1998 SC 788 , the Hon’ble Apex Court has held the following:- “In our view, Section 12 of the Probation of Offenders Act would apply only in respect of a disqualification that goes with a conviction under the law which provides for the offence and its punishment. In the case of Harichand Vs. Director of School Education reported in AIR 1998 SC 788 , the Hon’ble Apex Court has held the following:- “In our view, Section 12 of the Probation of Offenders Act would apply only in respect of a disqualification that goes with a conviction under the law which provides for the offence and its punishment. That is the plain meaning of the words “disqualification” if any, attaching to a conviction of an offence under such law” therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not, by reason of Section 12, suffer the disqualification. It cannot be held that, by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from Government service.” 15. The same position has been reiterated by the Hon’ble Apex Court in the case of Sushil Kumar Singhal Vs. Regional Manager, Punjab National Bank reported in (2010) 8 SCC 573 . 16. The only question before this Court however is whether the conviction by the criminal court would entail an automatic dismissal or removal from service or something else needs to be done by the appointing authority as well. The fact that once a Government employee has been charged and convicted by a criminal court, the appointing authority can take a decision regarding his removal or dismissal without resorting to an independent enquiry is not in doubt. In fact, this is the clear provision in the Constitution itself under Article 311 where it is mandatory to conduct an enquiry against a government servant before his removal or dismissal and reduction in rank, but this is not a requirement, when 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. Apart from Article 311 of the Constitution of India, the Rules which are presently applicable in the case of the petitioner also have a similar provision under Rule 8(2)(a) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 which read 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. 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 escane 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.” 17. The reason for the above provisions are not far to seek. This has been explained by the Hon’ble Apex Court in the case of The Divisional Personnel Officer, Southern Railway & another vs. T.R. Chellappan (supra) reported in (1976) 3 SCC 190 . The Hon’ble Apex Court states as under:- “The reason for the proviso is that in a criminal trial the employee has already had a full and complete opportunity to contest the allegations against him and to make out his defence. The Hon’ble Apex Court states as under:- “The reason for the proviso is that in a criminal trial the employee has already had a full and complete opportunity to contest the allegations against him and to make out his defence. In the criminal trial charges are framed to give clear notice regarding the allegations made against the accused, secondly, the witnesses are examined and cross-examined in his presence and by him; and thirdly, the accused is given full opportunity to produce his defence and it is only after hearing the arguments that the Court passes the final order of conviction or acquittal. In these circumstances, therefore, if after conviction by the Court a fresh departmental inquiry is not dispensed with, it will lead to unnecessary waste of time and expense and a fruitless duplication of the same proceedings all over again. It was for this reason that the founders of the Constitution thought that where once a delinquent employee has been convicted of a criminal offence that should be treated as a sufficient proof of his misconduct and the disciplinary authority may be given the discretion to impose the penalties referred to in Article 311(3), namely, dismissal, removal or reduction in rank.” 18. All the same, in the same proviso, the Hon’ble Apex court had also cautioned that it is only an enabling provision, it does not mean that a conviction would result in automatic dismissal or removal from service, as the Hon’ble Apex Court after referring to the above provisions states as under:- “It appears to us that proviso (a) to Article 311(2) is merely an enabling provision and it does not enjoin or confer a mandatory duty on the disciplinary authority to pass an order of dismissal, removal or reduction in rank the moment an employee is convicted. This matter is left completely to the discretion of the disciplinary authority and the only reservation made is that departmental inquiry contemplated by the provision as also by the Department Rules is dispensed with.” 19. And in the same judgment the Hon’ble Apex Court also held the following:- “Thus, in our opinion, it is a fallacy to presume that the conviction of a delinquent employee simpliciter without anything more will result in his automatic dismissal or removal from service.” 20. And in the same judgment the Hon’ble Apex Court also held the following:- “Thus, in our opinion, it is a fallacy to presume that the conviction of a delinquent employee simpliciter without anything more will result in his automatic dismissal or removal from service.” 20. The only exception here is regarding conviction for an offence which involves “moral turpitude” and for this reason in the above rules pertaining to the service of the present petitioner as well an exception has been carved out in the case of such nature of convictions. In case of conviction involving moral turpitude, he can be dismissed straightaway and only if the appointing authority chooses to afford hearing to such an employee that the authority must assign reasons while doing so in view of Sub Rule (4)(b) of Rule 8 of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (which have been quoted above) which states that “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.” 21. Undoubtedly, therefore when a government employee has been convicted in a criminal case, the appointing authority does have power to remove or dismiss him from service. This much is not in doubt. The only question is whether this is automatic? Whether the appointing authority has to do nothing further then to pass a dismissal order or removal order? In other words, is the order of dismissal or removal (reduction in the rank as the case might be), the only order which can be passed by the authority. Clearly the judgments of Hon’ble Apex court on this aspect caution the authorities in such cases. What has been said on this is that both the proviso to Article 311 of the Constitution of India as well as the similar service Rules merely enable the appointing authority to dismiss or remove a person from service. In the case of Shankar Dass Vs. Union of India & another reported in (1985) 2 SCC 358 the Hon’ble Apex Court has held the following:- “It is to be lamented that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him insofar as his service career was concerned. Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service “on the ground of conduct which has led to his conviction on a criminal charge”. But, that power, like every other power, has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly.” 22. Considering the above provisions of law and the decision of the Hon’ble Apex Court, this Court finds that the petitioner having been convicted by the criminal court for an offence punishable under Section 338 IPC does not warrant an automatic dismissal from service though it does not require a detail enquiry or disciplinary proceedings. There cannot be an automatic removal or dismissal in each and every case, considering the specific provisions contained in Rule 8(4)(b) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 which has already been referred above. An automatic dismissal can be made in a case where a Government servant has been convicted for an offence which involves moral turpitude or other such heinous or major offences. While straightway dismissing the petitioner from the service, respondent authority has relied upon the Government order dated 12.10.1979 passed by Secretary, Government of U.P. The order dated 12.10.1979 is annexed as Annexure no.2 to the counter affidavit. The said order has been perused. The said order refers to Article 311 (2) of the Constitution of India and states that if a government employee has been convicted by the criminal court, then his services can be dispensed with. As already stated above, Article 311 (2) of the Constitution of India is merely enabling provision. The said order has been perused. The said order refers to Article 311 (2) of the Constitution of India and states that if a government employee has been convicted by the criminal court, then his services can be dispensed with. As already stated above, Article 311 (2) of the Constitution of India is merely enabling provision. It does enable the appointing authority to straightway dispense with the services of an employee who has been convicted by the criminal court but does it say that such dismissal or removal is automatic to the conviction. In other words it does not say that anything further needs to be done by the appointing authority in each and every case. Therefore, the reliance on Government Order dated 12.10.1979 is of no help to the respondent in this matter. 23. In view of the above, the order dated 31.08.2013 as well as order dated 21.01.2014 are hereby set aside. The setting aside of these two orders will not reinstate the petitioner in service, as his status as of now and that for this intervening period will be that of a suspended employee, he shall also not be given any salary or any kind of monetary benefits for the period he remained suspended, considering facts and circumstances of the case. 24. It is however, made clear that two orders have merely been set aside only because the appointing authority did not apply its mind at all to the gravity of the situation. These orders have been quashed only to enable the authority to pass an appropriate order, and this can only be done after assigning reasons by the authority, and after giving a show cause to the petitioner. This is the minimum requirement which has to be complied with by the appointing authority considering that the conviction of the petitioner is not for an offence of moral turpitude, hence automatic dismissal or removal was not mandated by the law. 25. In view of the above, writ petition stands disposed. 26. No order as to costs.