JUDGMENT B.L. Loomba, J. - This writ petition of U.P. State Road Transport Corporation (hereinafter referred to as the Corporation) has been directed to challenge the validity of the judgment and order of the U.P. Public Services Tribunal (hereinafter referred to as the Services Tribunal) dated 181077, whereby the claim petition filed before the Services Tribunal by opposite party no. 1 Satya Prakash Gupta was allowed and the order of termination from service of Shri Gupta dated 18976 was set aside. It was held that Shri Gupta shall be deemed to be in service throughout and the appointing authority shall pass a clear and proper order regarding allowances payable to him for the relevant period. 2. There is virtually no controversy as regards the relevant facts. Satya Prakash Gupta, opposite party no. 1 was a Grade II Clerk in the U.P. Roadways, Dehradun having joined on 251152. He was also working as an honorary Treasurer to the Roadways Salary Earners Cooperative Credit Society during the period 1961 to 1967. In that capacity he was prosecuted for an offence of criminal breach of trust under section 408 of the Indian Penal Code for misappropriating the accountbooks, balance sheet and certain other registers and papers of the society. In trial he was convicted for this offence and sentenced to two years rigorous imprisonment and a fine of Rs. 1,000. The appeal filed by Shri Gupta was dismissed by the learned Sessions Judge, Dehradun by his judgment dated 13476 as regards his conviction. Copy of the judgment of the learned Sessions Judge in the Criminal appeal has not' been filed. However, a copy of the extract from the judgment has been filed by Shri Gupta as Annexure1 to his counteraffidavit dated 13178. As would appear therefrom the learned Sessions Judge had observed that criminal breach of trust was only in respect of cash book and there is nothing to show that any funds have been misappropriated or that the cashbook was misappropriated to cover up such misappropriation of funds. Accordingly, the learned Sessions Judge was of the view that the offence is only of technical nature not warranting severe punishment. It was observed that the accused is a young man and should be allowed an opportunity to reform instead of being condemned to jail. Accordingly, the learned Sessions Judge was of the view that the offence is only of technical nature not warranting severe punishment. It was observed that the accused is a young man and should be allowed an opportunity to reform instead of being condemned to jail. Accordingly, a lenient view was taken and instead of sentencing him to any punishment he was given benefit of section 4 of the U.P. First Offenders Probation Act, 1938 and directed to be released on entering into bond with sureties for a sum of Rs. 5,000 in terms of the said section. Shri Gupta accordingly furnished the required bond with sureties. After the judgment of the learned Sessions Judge Shri Gupta applied to be reinstated but the Regional Manager of the Corporation, Dehradun, by order dated 1891976 removed Shri Gupta from service of the Corporation. 3. In the claim petition before the Services Tribunal reliance was mainly placed on section 12 of the Probation of Offenders Act in support of the plea that where an offender is dealt with under sections 3 and 4 of the Act he shall not suffer disqualification, if any, attached to a conviction of an offender and as such the order of removal from service could not be legally passed by Corporation on the basis of his conviction under Section 408 of the Indian Penal Cede. Section 12 of the Probation of Offenders Act runs like this: 12. 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. 4. The learned Tribunal considered the question of application of section 12 of the Probation of Offenders Act, 1958 and held that since there is no provision parallel to that contained in section 12 of this Act in the U.P. First Offenders Probation Act, 1938 and, as such, Shri Gupta was not entitled to any advantage underlying the provisions of the said section 12. Even otherwise section 12 has no application in the matter because this provision has not been made applicable to the State of Uttar Pradesh and in the district of Dehradun at the relevant time. In the additional counteraffidavit dated 12188 filed in this Court Shri Gupta has stated that this Act has been enforced in some of the districts including the district of Dehradun vide notification dated 5780. Shri Gupta, it appears, was convicted in the year 1972 and his Crl. Appeal No. 56 of 72 was decided by the learned Sessions Judge, Dehradun on 1341976. On that date this Act was not in force in Dehradun and, as such, Shri Gupta was not entitled to the benefit of section 12 thereof. Moreover, Shri Gupta was extended benefit of release on probation under the provisions of the U.P. First Offenders Act 1958 (sic) was not available to him. The mere fact that he was given the benefit of release on probation does not take away the factum of his conviction under section 408 of the Indian Penal Code. 5. The question then remaining is whether the conviction under section 408 of the IPC could be made basis for termination of his services without giving an opportunity by serving on him a show cause notice in compliance with the requirements of the provisions of Classification, Control and Appeal Rules, read with Article 311(2) of the Constitution of India and also on the requirement of principles of natural justice. The learned Tribunal allowed the claim petition of Sri Gupta on this point on the strength of the principle of law, laid down in the case of Om Prakash v. Director (AIR 1973 Punjab & Haryana1). In this writ petition the principal ground of attack of the judgment of the Services Tribunal is that decision in Omprakash's case (supra) is inapplicable and it was not at all necessary under law to have issued show cause notice before terminating the services of Shri Gupta on the basis of conviction under section 408 of the Indian Penal Code. 6. A perusal of the decision in Om Prakash's case would show that Om Prakash, petitioner in that case was dismissed from service consequent upon his conviction under sections 420/51I and 465/471 of the Indian Penal Code in connection with the submission by him of false reimbursement claims. 6. A perusal of the decision in Om Prakash's case would show that Om Prakash, petitioner in that case was dismissed from service consequent upon his conviction under sections 420/51I and 465/471 of the Indian Penal Code in connection with the submission by him of false reimbursement claims. The order of dismissal was challenged on the ground that section 12 of the probation of the offenders Act removes disqualification which was attached because he was released on probation under section 4 of the Act and that it was not open to pass the order of dismissal merely on the basis of conviction. Dealing with section 12 of the said Act it was held that no part of section 12 is intended to exonerate a Government servant of his liability to departmental punishment for misconduct. What forms basis of the punishment is the misconduct and not the conviction. Dealing with the protection of Article 311 of the Constitution it was held that in the case of conviction, the application of, the purview of Article 311 (2) is excluded by proviso (a) to that provision and under Classification, Control and Appeal Rules is excluded by Rule 19 (1) of these Rules and as such the application of the principles of natural justice is excluded because concerned Government servant must naturally have had full opportunity to defend himself in the criminal court where the conviction can be recorded only after returning a finding of guilt on the basis of a much higher standard of proof which is enough for punishing a person in department proceedings [see para 21 (vii)]. The impugned order of dismissal was quashed on the ground that the conviction of a Government servant on a criminal charge does not entail automatic infliction of any of the three major punishment and that it is necessary for the competent authority to apply its mind to the facts of the case to examine the conduct of the public servant concerned which had led to his conviction and to determine the nature and quantum of punishment which his conduct called for. It was held that inasmuch as the petitioner had been dismissed on account of the conviction alone without any finding about his conduct justifying his dismissal, the impugned order cannot be sustained. 7. It was held that inasmuch as the petitioner had been dismissed on account of the conviction alone without any finding about his conduct justifying his dismissal, the impugned order cannot be sustained. 7. As against this decision learned counsel for the petitioner had placed reliance on the famous case of Union Bank of India v. Tulsi Ram Patel ( AIR 1985 SC 1416 ) and in particular para 127 thereof. It would be useful to reproduce this para below: 127. Not much remains to be said about clause (a) of the second proviso to Article 311(1). 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 Challappan's case (AIR 1975 SC 2116). 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 those 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 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 all 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 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 Shanker Dass v. Union of India (1985) 2 SCC 358 : ( AIR 1985 SC 772 ) 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. 8. Copy of the order of termination of the services of Shri Gupta dated 1891976 is annexure1, to this writ petition. This shows that the order for removal of Shri Gupta from service was based on his conviction under section 408 of the IPC; obviously, thus, the punishing authority did not go into the conduct of Shri Gupta which led to his conviction. What was required obviously was to have taken into consideration the conduct on the basis of which Shri Gupta was convicted and in that context to have arrived at the conclusion whether penalty of termination of service was warranted or not. As was decided in Tulsi Ram Patel's case (supra), the punishing authority was required to consider the facts and circumstances of the case and arrive at the conclusion whether removal from service was the appropriate punishment to be given. This was to be done without issuing notice or giving an opportunity to Shri Gupta. As was decided in Tulsi Ram Patel's case (supra), the punishing authority was required to consider the facts and circumstances of the case and arrive at the conclusion whether removal from service was the appropriate punishment to be given. This was to be done without issuing notice or giving an opportunity to Shri Gupta. In other words the matter was required to be considered objectively as to the adequacy of punishment to be given in relation to the conviction of Shri Gupta. 9. The question then arising is whether in the facts of this case the noncompliance of the requirement of passing the order of punishment upon objective consideration of the facts and circumstances relating to the conduct should be treated as sufficient to dismiss the writ petition. Learned counsel for the petitioner argues that if Shri Gupta was aggrieved by the order of termination of his services it was open to him to have filed an appeal before the appellate authority. It has also been submitted that as per the own admission of Shri Gupta he was reinstated on the basis of the order of the Services Tribunal and received the arrears of his salary from the date of the termination order. After reinstatement he has been receiving his salary and allowance regularly till the date of his superannuation on 3111988. Copies of the order of reinstatement and order about his retirement on superannuation have been filed with additional counteraffidavit dated 1111988. It is submitted that Sri Gupta deserves some punishment for his conduct relating to his conviction under section 408 of the IPC. This submission of the learned counsel for the petitioner has some merit. The argument raised by the learned counsel for Shri Gupta, however, is that the offence for which he was convicted was merely of technical nature and for this submission reliance is placed on copy of the order of the Sessions Judge, Dehradun dated 1341976. Copies of the judgment as a whole of the trial court as also of the Sessions Judge, Dehradun, have not been filed and merely an extract from the judgment and order of the Sessions Judge has been filed as AnnexureA1 to the counteraffidavit dated 1311978, by Shri Gupta. Copies of the judgment as a whole of the trial court as also of the Sessions Judge, Dehradun, have not been filed and merely an extract from the judgment and order of the Sessions Judge has been filed as AnnexureA1 to the counteraffidavit dated 1311978, by Shri Gupta. This order, no doubt, indicates that a criminal breach of trust related only to cash book and there was nothing to show that any funds had been misappropriated to cover up such misappropriation of funds. However, the true implications underlying the alleged criminal breach of trust could appear only from the perusal of the judgment of the trial court, as also of the full judgment rendered in appeal. In the absence of the full factual picture it is difficult to arrive at a finding as to the innocence of Sri Gupta or about the absence of any motive underlying the criminal breach of trust which was established in the criminal case against him. In this situation, some punishment could certainly be warranted on the basis of the conduct which led to conviction under section 408 IPC. 10. The judgment of the Service Tribunal as stated already was based on the decision in Om Prakash's case (supra). That decision is not fully applicable to the facts of this case and in the light of the law laid down in Tulsi Ram Patel's case (supra), the order of termination could be challenged by Shri Gupta by way of appeal which admittedly was not done. Even in judicial review of the matter it is open to the court to consider the question of adequacy of penalty imposed by the impugned order & in suitable cases substitute penalty which may appear to be just and proper in the circumstances of the case. 11. Shri Gupta's main plea of his entitlement to the benefit of section 12 of the probation of Offenders Act having failed the only proper and legal course open to the learned Services Tribunal was to have allowed the claim petition and to have remanded the matter for consideration by the punishing authority as to what punishment was justified in relation to the conduct which led to the conviction of Shri Gupta. In view of the legal position as analysed above it was not justified for the Services Tribunal to have set aside the order of termination and direct reinstatement of Shri Gupta. In view of the legal position as analysed above it was not justified for the Services Tribunal to have set aside the order of termination and direct reinstatement of Shri Gupta. Strictly speaking, the writ petition can be allowed to quash the order of services Tribunal and direct the matter to be considered by the punishing authority as to the adequacy of punishment to be awarded in regard to the conduct of Shri Gupta which led to his conviction. Upon consideration of the matter as a whole such an order may not be appropriate and fair to the parties. Shri Gupla after the order of the Services Tribunal was reinstated and was duly paid arrears of salary till the date of his superannuation. In the changed circumstances, it appears appropriate that the matter may be finally disposed of by this Court so as to set the controversy at rest in a fair and just manner. It is difficult to accept the submission raised on behalf of Shri Gupta that no punishment, whatsoever, was justified against him. Equally true may be the position that the order for removal from service would not be justified and would be too harsh because as per the observation contained in the operative portion of the judgment of the Sessions Judge no appropriation of public funds was involved. Shri Gupta may now be entitled only to the pensionary benefits and ends of justice to my mind, would be met if punishment is limited to deprival of pensionary benefits. 12. For what has been stated above, it is held that the punishment of deprival of the pensionary benefits as may be admissible to Shri Gupta may be adequate and proper penalty in relation to the conduct which led to his conviction under section 408 IPC. The impugned order of the Services Tribunal dated 181077 is modified to the extent that instead of the order of termination of services Shri Gupta shall suffer the punishment of deprivation of pensionary benefits in relation to his conduct which led to his conviction under section 408 IPC. 13. The writ petition is disposed of accordingly. No order as to costs. (Petition allowed)