K. RAMAMOORTHY, J. ( 1 ) THE petitioner, who was in the Indian Army holding the rank of Havildar, haschallenged the order of dismissal dated 16. 5. 1994andtheletter dated 18. 10. 1996by which the petitioner was denied pensionary benefits. ( 2 ) WHILE the petitioner was in service in June, 1990, he was in his village on leave. There was some criminal case against him, and the petitioner was accused ofhaving assaulted some persons. The trial court by order dated 16. 7-1991 found themain accused Harbir Singh guilty undersection 302 Indian Penal Code and the with Section 149ipc. There were other accused and all the accused were further held guilty undersection 323 IPC. All the accused were sentenced to imprisonment for life andfine of Rs. 500. 00 under Section 302 read with Section 149 Indian Penal Code and further sentencedto three months Rl under Section 323 read with Section 149 IPC. On the basis ofconviction by the trial court, the Brigadier Commander, 170 Infantry Brigade passedthe following order of dismissal on the 30th of July, 1991:- CAUSE OF DISMISSAL AND ITEM OF TABLE IN RULE 17 OF ARMY RULES1954 READ WITH ARMY ACT SECTION 20 (3) OF ARMY ACT, 1950. 1. "dismissed from service w. e. f. 16/07/1991 being convicted by Hon blecourt of Addl Sessions Judge, Bhiwani (Haryana)on16jul91anct sentencedunder Section 302 read with Section 149 Indian Penal Code to undergo imprisonment for lifeand also to pay a fine of Rs. 500. 00 (Five hundred) and in default of paymentof fine, to undergo rigourous imprisonment for six months. He has also beenconvicted and sentenced under Section 148 Indian Penal Code to undergo regourousimprisonment for six months and further convicted and sentenced undersection 323 read with Section 149 Indian Penal Code to undergo rigourous imprisonmentfor three months. However, all the substantive sentences of imprisonmentshall run concurrently. "2. Dismissal from service sanctioned in accordance with Army Rule 17 ofarmy Rules 1954 read with Army Act Section 20 (3) of Army Act, 1950 bycommander 170 Infantry Brigade. " ( 3 ) THERE was an appeal to the High Court challenging the judgment of the trialcourt, and therein, the main accused was found guilty of homicide and sentenced tofive years Rl and fine of Rs. 500. 00. " ( 3 ) THERE was an appeal to the High Court challenging the judgment of the trialcourt, and therein, the main accused was found guilty of homicide and sentenced tofive years Rl and fine of Rs. 500. 00. The High Court found the injuries inflicted by theother co-accused were of minor in nature and found them guilty under Section 323of Indian Penal Code and the sentence undergone by them was considered sufficient. The matterwas carried by way of a special leave petition to the Supreme Court of India by thepetitioner. ( 4 ) ON the 18th of August, 1991, another communication dated 18. 8. 1991 wassent to the petitioner. The same is as under:- DISMISSAL FROM SERVICE: CASE FIR No. 189 DATED 18jun90u/s IPC148, 302, 323/149 AGAINST NUMBER 2870389 K HAV VED PARKASHSANGWAN1. You have been convicted by Addl Sessions Judge, Bhiwani (Haryana) inyour above mentioned civil case and awarded life-imprisonment. 2. In view of the above, you have been dismissed from service wef 16 Jul91 by Cdr1701nf Bde, under the provisions of para423of Regulationsfor the Army 1962 (Revised Edition 1967 ). 3. Please acknowledge receipt of this letter. " ( 5 ) THE Supreme Court, by order dated 11. 4. 1994, released the petitioner onprobation under Section 360 Criminal Procedure Code maintaining the conviction of the petitionerunder Section 323 IPC. ( 6 ) ON the 16th of May, 1994, a Discharge Certificate was issued by the Record OFFICER, OIC Records and the same reads as under:-DISCHARGE CERTIFICATE IN LIEU OF IAFY-1964 (Issued in accordance with Army Act Section 23 and Army Rule 12 ). Army Number: 2870389k Rank: Havaldar (GD)Name: Ved Prakash Sangwan of 13 Raj RIF is dismissed from the serviceby the orders of the Commander 170 Infantry Brigade, C/o, 56 APOunder Army Act Section 20 (3) of Army Act, 1950. His dismissal takes effect from 16/07/1991. Cause of dismissal: Dismissed from service having been convicted bycourt of Additional Sessions Judge Bhiwani (Haryana) on 16/07/1991 undersection 302 read with Section 149 Indian Penal Code to undergo, imprisonment for life. The sentence reduced and convicted with Section 323 Indian Penal Code with award of thepunishment already undergone vide the Supreme Court of India, Criminalappellate Jurisdiction, New Delhi Order No. 510647 dated 11/04/1994. " ( 7 ) ON the 2nd of June, 1994, the Brigadier Commander had written to the fatherof the petitioner: REG: Pension and re-instatement into service. The sentence reduced and convicted with Section 323 Indian Penal Code with award of thepunishment already undergone vide the Supreme Court of India, Criminalappellate Jurisdiction, New Delhi Order No. 510647 dated 11/04/1994. " ( 7 ) ON the 2nd of June, 1994, the Brigadier Commander had written to the fatherof the petitioner: REG: Pension and re-instatement into service. 1. High Court of Punjab and Haryana has found No. 2870389 Ex. Hav. Vedprakash guilty under Section 323 of Indian Penal Code and convicted him to imprisonmentfor life. After this Supreme Court in appeal decreased his punishment butheld him guilty. 2. Under Army Rules Brigade Commander has discretionary power todecide whether so convicted accused should be kept in service in the Armyor not. In this case Commander 170 Infantry Brigade has dismissed himfrom Army Service on his having been found guilty which is correctaccording to law. 3. Such a person is not entitled to pension or other pensionary benefits. " ( 8 ) ON the 7th of August, 1994, the petitioner had made a representation to theministry of Defence. On the 11th of August, 1994, the Record Officer, OIC Recordspassed the following order: RE-INSTATEMENT INTO SERVICE. . 1. Reference our letter No. RNE/x dated 2. 6. 94 and your letter dated Nilmay 1994. 2. High Court of Punjab and Haryana had sentenced you to imprisonmentfor life on finding you guilty under Section 323 of IPC. After his Supremecourt deceased your sentence on your appeal sent your convictioncontinued. A detailed reply has been sent to Sub Kripa Ram on this case. Please get in touch with sub Kripa Ram on this subject. " ( 9 ) ON the 23rd of August, 1994, the petitioner made a representation to the OICRecords, Raj RIF Records Officer, Delhi Cantt. , requesting that an order of dischargemay be passed so that he may draw service pension and other benefits. ( 10 ) BY letter dated 18. 10. 1996,the request of the petitioner was rejected, includingthe claim for pension. The letter reads as under: "1. Refer to your application dated 0 7/08/1994. 2. Your case has been turned down by Ministry of Defence. In view of aboveyou cannot be reinstated in the Army and no pensionary benefits readmissible to you. " ( 11 ) ON the 6th of February, 1997, the writ petition was presented in this Court. The letter reads as under: "1. Refer to your application dated 0 7/08/1994. 2. Your case has been turned down by Ministry of Defence. In view of aboveyou cannot be reinstated in the Army and no pensionary benefits readmissible to you. " ( 11 ) ON the 6th of February, 1997, the writ petition was presented in this Court. ( 12 ) THE main points mentioned in the writ petition are: First, the respondents haddismissed the petitioner from service under Section 20 of the Army Act, 195cwithout giving show cause notice under Rule 17 of the Army Rules, 1954. Accordingto the petitioner, the dismissal order dated 16. 5. 1994 is void ab initio. The seconcpoint is that the petitioner having put in minimum qualifying service for pension, hiscase should have been considered and he should have been granted pension. Thethird point taken is that the Pension Regulation 113 is ultra vires the Constitutionwhich confers an arbitrary power on the authority concerned to deprive the personslike the petitioner from getting pension when the rule does not lay down anyguidelines. The petitioner has also stated that the respondent had acted in grossviolation of his Fundamental Rights under Articles 14 and 21 of the Constitution ofindia ( 13 ) IN the counter-affidavit filed by the respondents, it is stated that there hasbeen delay in filing the writ petition against the order which was passed in August1994. On the 16th of July, 1991, the petitioner was convicted by the Additionasessions Judge, Bhiwani. Haryana. On this basis, byorder dated 16. 7. 1991, thepetitioner was sent to District Jail. Bhiwani. He was dismissed from service on the16th of July, 1991 in accordance with Rule 17of the Army Rules, 1954 and para 14"of the Army Regulations. The respondents have referred to the order dated11. 4. 1994 by the Supreme Court giving the petitioner the benefit of Section 36ccr. P. C. As per Regulation 113 of the Pension Regulations for Army, 1961, areindividual who is dismissed under the provisions of the Army Act, 1950 is noteligible for pension. According to the respondents, Regulation 16 (a) of the Pensiorregulations for Army, 1961 would not apply to the case of the petitioner. P. C. As per Regulation 113 of the Pension Regulations for Army, 1961, areindividual who is dismissed under the provisions of the Army Act, 1950 is noteligible for pension. According to the respondents, Regulation 16 (a) of the Pensiorregulations for Army, 1961 would not apply to the case of the petitioner. In paragraph12 of the counter, it is stated by the respondents: "the petitioner had completes 15 years of service on the day of hisdismissal from service however the petitioner was not entitled to servicepension under para113 (1)of pension regulation as the petitioner wasdismissed from service in accordance with AA Section 20 (3) read inconjunction with Army Rule 17. " ( 14 ) THE petitioner filed rejoinder on the 27th of March, 1998. It is the case of thepetitioner in the rejoinder that the Supreme Court passed the order for the benefit ofthe petitioner. The respondents had not acted fairly in considering the case of thepetitioner after order passed by the Supreme Court on the 11th of April, 1994. Inparagraph 3 of the rejoinder, it is stated: "that the Hon ble Supreme Court has held that Section 12 of Probation ofoffenders Act, 1958 statutorily provides that an offender who has beenreleased on. probation shall not suffer disqualification attaching to aconviction of the offence for which he has been convicted notwithstandinganything contained in any other law. After release on probation the minimumthat respondents are required to do is to change order of dismissal toremoval from service. That admittedly the petitioner has not been awardedany punishment for any offence during service. His service is satisfactory. "it is stated in paragraph 4 of the rejoinder by the petitioner: "that admittedly the petitioner has minimum qualifying service i. e. , morethan 15 years, for pension under the Rules (para 12 ). It is well settled lawlaid by Hon ble Supreme Court that mere order of dismissal from servicedoes not deprive a person under Army Act of his pensionary rights. Aseparate order can be passed under Pension Regulation after servingshow cause notice. It is also well settled law that principles of natural justiceare implicit in every decision making function. These can be denied only ifthere is express statute staling so. Where the statute is silent about theobservance of the principles of natural justice, such statutory silence istaken to imply compliance with the principles of natural justice. It is also well settled law that principles of natural justiceare implicit in every decision making function. These can be denied only ifthere is express statute staling so. Where the statute is silent about theobservance of the principles of natural justice, such statutory silence istaken to imply compliance with the principles of natural justice. ( 15 ) THE learned counsel for the petitioner, Mr. J. S. Manhas, submitted that theorder of dismissal passed by the authority concerned is illegal and that has beengiven effect to from a date earlier to the actual date on which the order was passed. He submitted that the respondents were failed to give notice under Rule 17 of thearmy Rules, 1954 and no notice was given, and, therefore, the order of dismissalis void in law. ( 16 ) THE learned counsel for the petitioner, Mr. J. S. Manhas, further submittedthat the Supreme Court had released the petitioner on probation under Section360 of the Cr. P. C. , and, therefore, the petitioner cannot be deprived of hispensionary benefits. The learned counsel submitted that the respondents had notconsidered the scope of order passed by the Supreme Court in the light of theprovisions of Section 12 of the Probation of Offenders Act, 1958. The learnedcounsel submitted that under Section 12 of the said Act, whatever disqualification isattached to the petitioner, that would completely stand obliterated and the resultantposition is that there has been no conviction against the petitioner by a criminalcourt, and, therefore, the petitioner cannot be deprived of his service. Thelearned counsel went to the extent of submitting that the petitioner is entitled to bereinstated in service, even though the plea taken in the rejoinder is that therespondents could pass only an order of discharge which would not affect the right ofthe petitioner to get pension and other benefits. The learned counsel did notadvance any argument in respect of vires of Regulation 113 of the Pension Regulationsfor Army, 1961. ( 17 ) THE learned counsel for the petitioner, Mr. J. S. Manhas, relied upon thefollowing rulings, while dealing with the scope of Section 12 of the Probation ofoffenders Act, 1958: 1. "/qba/ Singh Vs. Inspector General of Police and Others", AIR 1970delhi 2402. "union of India and Others Vs. Tulsiram Patel, AIR 1985 SC 1416 = (1985) 3 SCC 398 3. Shankar Dass Vs. J. S. Manhas, relied upon thefollowing rulings, while dealing with the scope of Section 12 of the Probation ofoffenders Act, 1958: 1. "/qba/ Singh Vs. Inspector General of Police and Others", AIR 1970delhi 2402. "union of India and Others Vs. Tulsiram Patel, AIR 1985 SC 1416 = (1985) 3 SCC 398 3. Shankar Dass Vs. Union of India and Another, AIR 1985 SC 772 = (1985) 2 SCC 358 4. "union of India and Others Vs. Corporal A. K. Bakshi and Another", (1996) 3 SCC 65 ( 18 ) MR. J. S. MANHAS, the learned counsel for the petitioner, referred to thefollowing judgments of this Court with reference to the claim for pension: 1. "hazara Singh Vs. Chief of the Air Staff , 1982 (1) SLR 521 . 2. "a. K. Malhotra Vs. Union of India and Others", 1997 (4) SLR 151. ( 19 ) THE learned counsel for the respondents, Ms. Geeta Luthra, submitted thatthe respondents had acted in accordance with the provisions of the Army Act,1950 and the Army Rules, 1954, and when the petitioner had been convicted by acriminal court and that conviction had been maintained by the Supreme Court ofindia, the petitioner cannot rely upon the fact that he was released on probationunder Section 360 of the Criminal Procedure Code and consequently, he cannot press into servicethe provisions of Section 12 of the Probation of Offenders Act, 1958. The learnedcounsel submitted that Section 12 of the Probation of Offenders Act, 1958 wouldnot apply to a case arising under the Army Act, 1950, and, therefore, thepetitioner is not entitled to any relief in a petition under Article 226 of the Constitutionof India. ( 20 ) I shall deal with the cases cited at the Bar before going into the facts of theinstant case. ( 21 ) IN "iqbal Singh \/s. Inspector-General of Police and Others", AIR 1970 Delhi240, lqbal Singh filed the writ petition challenging his order of dismissal fromservice. He was appointed as a Constable by the Commandant, Delhi Armedpolice on the 6th of April, 1953. On the 27th of February, 1957, he was promoted ashead Constable and confirmed on that post by order dated 7. 3. 1963 by theassistant Inspector-General of Police. When the petitioner was in his village onleave in August, 1966, he was involved in a criminal case and was tried undersection 336/337 of the Indian Penal Code. On the 27th of February, 1957, he was promoted ashead Constable and confirmed on that post by order dated 7. 3. 1963 by theassistant Inspector-General of Police. When the petitioner was in his village onleave in August, 1966, he was involved in a criminal case and was tried undersection 336/337 of the Indian Penal Code. He was convicted under Section 337 ofthe Indian Penal Code but was given the benefit of the provisions of Section 4 ofthe Probation of Offenders Act, 1958. The appeal by the petitioner therein tosessions Judge was unsuccessful and the revision petition filed by the petitionerto the High Court met with the same fate. The petitioner was suspended from servicein 1966. That was revoked on the 6th of September, 1967 and he was reinstated. After reinstatement, the petitioner therein was sent for training. On the 15th ofnovember, 1968, an order was passed by the authority concerned dismissing himfrom service. The order of dismissal reads as under :- "on having been convicted in case FIR No. 186 dated 26. 8. 1966 undersec. 336/337 Indian Penal Code, PS Shri Hargovind Pur, District Gurdaspur,head Constable lqbal Singh No. 287/l (now under training at PTC Phillapur)is hereby dismissed from the Force with effect from 15. 11. 1968. "he was not convicted under Section 336 IPC. The order of dismissal did not alsoconsider the consequences of the release of the petitioner under Probation ofoffenders Act, 1958. One of the main submissions before the Court was that thepetitioner having been given the benefit of Section 4 of the Act, the disqualificationattaching to his conviction could not form the basis of the order of dismissal andthe petitioner would be entitled to the protection undersection 12 of the Probationof Offenders Act, 1958. The Division Bench of this Court, dealing with thiscontention held that the petitioner had the protection under Sectin 12 of the Act, and,therefore, there was no disqualification. Consequently, the order of dismissal wasset aside ( 22 ) DEALING with the scope of Section 12 of the Probation of Offenders Act, 1958,the Division Bench, in "lqbal Singh Vs. The Division Bench of this Court, dealing with thiscontention held that the petitioner had the protection under Sectin 12 of the Act, and,therefore, there was no disqualification. Consequently, the order of dismissal wasset aside ( 22 ) DEALING with the scope of Section 12 of the Probation of Offenders Act, 1958,the Division Bench, in "lqbal Singh Vs. Inspector-General of Police and Others", AIR1970 Delhi 240, held: "section 12 of the Act uses the word "disqualification" and the meaninggiven to this word in Webster s Third New International Dictionary is:-" (i) the act of disqualifying or the state of being disqualified" (protestinghis disqualification from office under the new law); (ii) "something thatdisqualifies orincapacitates" (A crime conviction isautomatically a disqualification for thatpublic office ). "the word "disqualify" is also stated to mean - making someone unfit forsomething. The further meaning given is that the person may be deprived withinthe meaning of the word "disqualify" of any right or privilege. We are of the viewthat the words "disqualification, if any. attaching to a conviction of an offence" asused insection 12 of the Act would include a person s losing his right or qualificationto remain or to beretained inservice. Section 12 of the Act, clearly saves theconvict from suffering such disqualification attaching to his conviction. In respect ofhis conviction, the petitioner had the protection of Section 12 and he was savedfrom suffering any disqualification such as the one which resulted in his dismissal. " ( 23 ) IN Union of India and Othersvs. Tulsiram Patel, AIR 1985 SC 1416 = (1985)3 SCC 398 , the Supreme Court dealt with the scope of Article 311 (2) of theconstitution. At page 1472 (AIR), Rule 19 of the Civil Services Rules was dealtwith. That rule reads as under:- "19. Special procedure in certain cases. notwithstanding anything containedin rule 14 to 18- (i) Where any penalty is imposed on Government servant on the groundof conduct which has led to his conviction on a criminal charge, or (ii) where the disciplinary authority is satisfied for reasons to be recorded byit in writing that it is not reasonably practicable to hold an inquiry in themanner provided in these rules, or, (iii) where the President is satisfied that in the interest of the security of thestate, it is not expedient to hold any inquiry in the manner provided in theerules. the disciplinary authority may consider the circumstances of the case andmake such orders thereon as it deems fit;provided that the Commission shall be consulted: where suchconsultation is necessary, before any orders are made in any case underthis rule. "the Supreme Court dealt with Rule 37 of the CISF Rules, 1969, that is, Centralindustrial Security Force Rules, 1969 under the Central Industrial Security Forceact, 1968. Rule 37 of the CISF Rules, 1969 reads as under- "37. Special procedure in certain cases - Notwithstanding anythingcontained in rule 34, rule 35 or rule 36, where a penalty is imposed on amember of the force- (a) on the ground of conduct which had led to his conviction on a criminalcharge; or (b) where the disciplinary authority is satisfied for reasons to be recorded inwriting, that it is not reasonably practicable to follow the procedureprescribed in the said rules:the disciplinary authority may consider the circumstances of the case andpass such orders thereon as it deems fit. A member of the force who has been convicted to rigourous imprisonmenton a criminal charge shall be dismissed from service. In such cases, noevidence need be given to prove the charge. Only a notice shall be givento the party charged proposing the punishment of dismissal for hishaving been convicted to rigourous imprisonment and asking him to explainas to why the proposed punishment of dismissal should not be imposed. "referring to the duty of the Government, duty of the employer to act in accordancewith Article 311 (2), the Supreme Court posited: "not much remains to be said about clause (a) of the second proviso toarticle 311 (2 ). To recapitulate briefly, where a disciplinary authority comesto know that a government servant has been convicted on a criminal charge,it must consider whether his conduct which has led to his conviction wassuch as warrants the imposition of a penalty and, if so, what that penaltyshould be. For that purpose it will have to peruse the judgment of thecriminal court and consider all the facts and circumstances of the case andthe various factors set out in Challappan s case ( AIR 1975 SC 2216 ). This,however, has to be done by it ex parte and by itself. For that purpose it will have to peruse the judgment of thecriminal court and consider all the facts and circumstances of the case andthe various factors set out in Challappan s case ( AIR 1975 SC 2216 ). This,however, has to be done by it ex parte and by itself. Once the disciplinaryauthority reaches the conclusion that the government servant s conductwas such as to require his dismissal cr removal from service or reductionin 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 concernedgovernment servant by reason of the exclusionary effect of the secondproviso. The disciplinary authority must, however, bear in mind that aconviction 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 aggrievedby the penalty imposed can agitate in appeal, revision or review, as the casemay be, that the penalty was too severe or excessive and not warranted bythe facts and circumstances of the case. if it is his case that he is not thegovernment servant who has been in fact convicted, he can also agitate thisquestion in appeal, revision or review. If he fails in all the departmentalremedies and still wants to pursue the matter, he can invoke the court spower of judicial review subject to the court permitting it. If the court findsthat he was not in fact the person convicted, it will strike down the impugnedorder and order him to be reinstated in service. Where the court finds thatthe penalty imposed by the impugned order is arbitrary or grossly excessiveor out of all proportion to the offence committed or not warranted by thefacts arid circumstances of the case or the requirements of that particulargovernment service the court will also strike down the impugned order. Thus, in Shankar Dass Vs. Union of India (1985) 2 SCC 358 : (AIR1985 SC 772) this Court set aside the impugned order of penalty on theground that the penalty of dismissal from service imposed upon theappellant was whimsical and ordered his reinstatement in service with fullback wages. It is, however, not necessary that the court should alwaysorder reinstatement. Thus, in Shankar Dass Vs. Union of India (1985) 2 SCC 358 : (AIR1985 SC 772) this Court set aside the impugned order of penalty on theground that the penalty of dismissal from service imposed upon theappellant was whimsical and ordered his reinstatement in service with fullback wages. It is, however, not necessary that the court should alwaysorder reinstatement. The court can instead substitute a penalty which in itsopinion would bejust and proper in the circumstances of the case. "dealing with the case of the respondent, Tulsiram Patel, who was before thesupreme Court, the Supreme Court said:"the respondent, Tulsiram Patel, was a permanent auditor in the Regionalaudit Office, MES, Jabalpur. It appears thatorders were issued byheadquarters, CDA. CC, Meerut, stopping the increment of the respondentfor one year. One Raj Kumar Jairath was at the relevant time the Regionalaudit Officer, MES. Jabalpur. On 27/07/1976, the respondent wentto Raj Kumar s office and demanded an explanation from him as to why hehad stopped his increment whereupon Raj Kumar replied that he wasnobody to stop his increment. The respondent then struck Raj Kumar onthe head with an iron rod. Raj Kumar fell down, his head bleeding. Therespondent was tried and convicted under Section 332 of the Indian Penalcode by the First Class Judicial Magistrate, Jabalpur. The Magistrateinstead of sentencing the respondent to imprisonment applied to himthe provisions of Section 4 of the Probation of Offenders Act, 1958, andreleased him on his executing a bond of good behaviour for a period ofone year. The respondent s appeal against his conviction was dismissed bythe Sessions Judge, Jabalpur. The Controller General of Defence Accounts,who was the disciplinary authority in this case, imposed upon therespondent the penalty of compulsory retirement under clause (i) of Rule19 of the Civil Services Rules. The said order was in the following terms:"whereas Shri T. R. Patel, Pt. Auditor (Account No. 8295888) has beenconvicted on a criminal charge, to wit, under Section 332 of IPC. ,whereas it is considered that the conduct of the said Shri T. R. Patel,pt. Auditor, (Account No. 8295888) which has led to his conviction, is such asto render his further retention in the public service undesirable,now, therefore, inexercise of the powers conferred by Rule19 (i) of thecentral Civil Services (Classification, Control and Appeal) Rules, 1965,the undersigned hereby direct that the said Shri T. R. Patel, Pt. Auditor, (Account No. 8295888) which has led to his conviction, is such asto render his further retention in the public service undesirable,now, therefore, inexercise of the powers conferred by Rule19 (i) of thecentral Civil Services (Classification, Control and Appeal) Rules, 1965,the undersigned hereby direct that the said Shri T. R. Patel, Pt. Auditor, (Account No. 8295888) shall be compulsorily retired from service witheffect from25. 11. 1980. "the respondent thereupon filed a departmental appeal which was dismissed. "the Supreme Court further proceeded to say:"thereafter the respondent filed in the Madhya Pradesh High Court as writpetition under Article 226 and 227 of the Constitution. Relying uponchallappan s case ( AIR 1975 SC 2216 ) the High Court held that noopportunity had been afforded to the respondent before imposing thepenalty of compulsory retirement on him. It further held that the impugnedorder was defective inasmuch as it did not indicate the circumstanceswhich were considered by the disciplinary authority except the fact ofconviction of the respondent. We are unable to agree with either of the two-reasons given by the Highcourt for setting aside the order of compulsory retirement. So far as the firstground upon which the High Court proceeded is concerned, as alreadypointed outthat part of the judgment in Challappan s case (AIR 1975 SC2216) is not correct and it was, therefore, not necessary to give to therespondent any opportunity of hearing before imposing the penalty ofcompulsory retirement on him. It was, however, argued that the penalty imposed upon the respondent wasnot dismissal or removal from service but of compulsory retirement and,therefore, clause (a) of Article 311 (2) did not apply. The argument cannotbe accepted. The compulsory retirement of the respondent was not byreason of his reaching the age of superannuation or under other ruleswhich provide for compulsorily retiring a government servant on his completingthe qualifying period of service. The order of compulsory retirement inthis case was under clause (i) of Rule 19 of the Civil Service Rules and wasby way of imposing upon him one of the major penalties provided for inrule 11. It is now well settled by decisions of this Court that where anorderof compulsory retirement is imposed by way of penalty, it amounts to removalfrom service and the provisions of Article 311 are attracted. (See State ofupvs. Shyam Lal Sharma (1972) 1 SCR184. 189: (AIR1971 SC2151),and the cases referred to therein ). It is now well settled by decisions of this Court that where anorderof compulsory retirement is imposed by way of penalty, it amounts to removalfrom service and the provisions of Article 311 are attracted. (See State ofupvs. Shyam Lal Sharma (1972) 1 SCR184. 189: (AIR1971 SC2151),and the cases referred to therein ). The second ground upon which the High Court rested its decision isequally unsustainable. The circumstances which were taken into considerationby the disciplinary authority have been sufficiently set out in the order ofcompulsory retirement, they being that the respondent s conviction undersection 332 of the Indian Penal Code and the nature of the Offencecommittee which led the disciplinary authority to the conclusion that thefurther retention of the respondent in the public service was undesirable. The mention of section 332 of the Indian Penal Code in the said order itselfshows that respondent was himself a public servant and had voluntarilycaused hurt to another public servant in the discharge of his duty assuch public servant or in consequence of an act done by that person inthe lawful discharge of his duty. The facts here are eloquent and speak forthemselves. The respondent had gone to the office of his superior officerand had hit him on the head with an iron rod. It was fortunate that the skull ofraj Kumar was not fractured otherwise the offence committed would havebeen the more serious one under Section 333. The respondent was luckyin being dealt with leniently by the Magistrate but these facts clearly showthat his retention in public service was undesirable. In fact, the conduct ofthe respondent was such that he merited the penalty of dismissal fromgovernment service and it is clear that by imposing upon him only the penaltyof compulsory retirement, the disciplinary authority had in his mind thefact that the Magistrate had released him on probation. We accordinglyhold that clause (i) of Rule 19 of the Civil Services Rules was rightlyapplied to the case of the respondent. "the Supreme Court had noted that the disciplinary authority, while passing theorder of compulsory retirement, had in its mind the order of the Magistratereleasing the delinquent on probation. Dealing with the appeals arising under Rule37ofthecisf Rules, 1969, the Supreme Court held that the disciplinary authorityconcerned applied Rule 37 (b) of the CISF Rules, 1969 and clause (b) of the secondproviso to Article 311 (2) were rightly applied to the cases of the delinquent officials. Dealing with the appeals arising under Rule37ofthecisf Rules, 1969, the Supreme Court held that the disciplinary authorityconcerned applied Rule 37 (b) of the CISF Rules, 1969 and clause (b) of the secondproviso to Article 311 (2) were rightly applied to the cases of the delinquent officials. ( 24 ) SHANKAR Dass Vs. Union of India and Another", AIR 1985 SC 772 = (1985) 2scc 358, the appellant was working in Delhi Milk Supply Scheme Department acash Clerk. He filed a suit challenging the order passed against him and thematter ultimately dealt with by this Court in second appeal being RSA. 142/68 andjudgment was rendered on the 13th of April, 1971. The learned Single Judge, beforewhom the matter came for disposal, allowed the appeal. The learned Judgefollowed the dictum laid down by this Court in "lqbal Singh Vs. Inspector Generalof Police and Others", AIR 1970 Delhi 240. The learned Judge observed:"in view of the express provisions of Section 12 of the Probation ofoffenders Act, 1958, the appellant could not have been removed withoutcompliance of Article 311 of the Constitution of India. "this was challenged in LPA. No. 380/71 and the Division Bench of this Courtreferred to judgment of the learned Single Judge and dismissed the suit. Thedivision Bench followed the dictum laid down by a Full Bench of this Court. Thedivision Bench observed:turning now to the merits of the appeal, the points in controversy nowstand settled by a decision of the Full Bench of this Court reported as"director of Postal Services and Another Vs. Daya Nand", 1972 SLR 325 . The facts of the cited case were that Trikha Ram was an employee of theindian Posts and Telegraphs Department. Trikha Ram along with anotherwas charged under Sections 468/34 and 420/511 Indian Penal Code. Bothof them pleaded guilty to the charges and were convicted of the same. Instead of being sentenced, however, they were placed on probation forone year under Section 4 of the Probation of Offenders Act, 1958. Thereupon, Trikha Ram was dismissal under proviso (a) to Article 311 (2)of the Constitution of India without being given an opportunity either to rebutany charges or to show cause against any proposed punishment. Dissatisfied with the order of his dismissal, Trikha Ram filed a writ petition in "the High Court for quashing of the order of his dismissal. Thereupon, Trikha Ram was dismissal under proviso (a) to Article 311 (2)of the Constitution of India without being given an opportunity either to rebutany charges or to show cause against any proposed punishment. Dissatisfied with the order of his dismissal, Trikha Ram filed a writ petition in "the High Court for quashing of the order of his dismissal. Deshpande J. ,speaking for the court, held:-"proviso (a) to Article 311 (2) exempts the punishing authority fromcompliance with the giving of both these opportunities under Article 311 (2 ). The reason for the dispensing with both these opportunities by proviso (a) seems to be the following: Firstly, the accused person has a muchbetter opportunity of rebutting the charges against him in a criminal trialascompared to a departmental inquiry. Secondly, the conviction on acriminal charge is generally a greater punishment than the departmentalpunishment of dismissal, removal, reduction in rank etc. As the accusedhad an opportunity to show cause why he should not be convicted andsentenced by a criminal court it is thought needless that he should begiven an opportunity to show cause against the lesser penalty of adepartmental punishment such as a dismissal or removal. At any rate, forwhatever reasons, the framers of the Constitution have decided by enactingproviso (a) that both the opportunities in Article 311 (2) should be764 dispensed with. Whenever a Government servant is convicted of a criminal offence (unlessin an exceptional case the charge is a trivial or technical one like atraffic offence) the punishment of dismissal would be inflicted on theconvict as a matter of course. It is only in theory that it is true that thepunishing authority has to consider which particular punishmentshould be imposed on the convicted person. In practice, however. continuance of a convict in Government service would be always regardedas undesirable unless the conviction was for a technical offence. The object of section 12 of the Probation of Offenders Act, 19858 is toremove a disqualification attached to conviction. It does not go beyond it. The object of proviso (a) to Article 311 (2) of the Constitution of India istotally different. The object of section 12 of the Probation of Offenders Act, 19858 is toremove a disqualification attached to conviction. It does not go beyond it. The object of proviso (a) to Article 311 (2) of the Constitution of India istotally different. The criminal trial having given the full benefit of therule of audi alteram partem of natural justice to the accused person, theframers of the Constitution thought that it would not only be unnecessarybut inappropriate and harmful to public interest to allow the convictedperson to insist on a second hearing before he is visited with the punishmentof dismissal, removal or reduction in rank. This is sound public policy. Its object is that the departmental punishment should follow quickly afterthe conviction by a criminal court. Government should not be required tokeep a convicted person in service and to pay him his salary by havingresort to a second inquiry in a departmental proceeding. This objectis totally unrelated to the object of section 12 of the Probation of Offendersact, 1958. It is unthinkable therefore, that the affect of section 12 ofthe probation of Offenders Act should be that a totally unnecessary secondinquiry would have to be held by the Government before punishing anemployee who has been convicted after a full criminal trial. This isadditional reason why dispensing with the second inquiry by proviso (a)to Article 311 (2) of the Constitution of India cannot be regarded as adisqualification within the meaning of Section 12 of the Probation ofoffenders Act, 1958. A fortiori, an ordinary statute of Parliament like the Probation of Offendersact, 1958 cannot be so construed as to have the effect of amending ormodifying proviso (a) to Article 311 (2 ). Even if it is assumed tor the sakeof argument that the word "disqualification" used insection 12 of theprobation of Offenders Act is wide enough to include to Article 311 (2),such construction would have the effect of nullifying proviso (a ). Theword "conviction" had acquired a legal meaning by being used in- thecriminal Procedure Code etc. . prior to the framing of the Constitution. The word "conviction" would have to be construed in proviso (a) to Article311 (2) of the Constitution of India in the same sense in which it wasused previously, say in the Criminal Procedure Code, namely, convictionfor an offence. After such a conviction a Government employee cannotclaim the benefit of second inquiry because of proviso (a) to Article311 (2 ). The word "conviction" would have to be construed in proviso (a) to Article311 (2) of the Constitution of India in the same sense in which it wasused previously, say in the Criminal Procedure Code, namely, convictionfor an offence. After such a conviction a Government employee cannotclaim the benefit of second inquiry because of proviso (a) to Article311 (2 ). Section 12 of the Probation of Offenders Act,1958cannotbe soconstrued as to give a new meaning to the word conviction in proviso (a)to Article 311 (2), namely, that the disqualification which attached to convictionprior to the enactment of Section 12 of the Probation of Offenders Act wouldlonger attach to it, even in proviso (a) to Article 311 (2) of theconstitution of India. Section 12 of the Probation of Offenders Act,1958may modify the Representation of Peoples Act or administrative practice. But it cannot modify a constitutional provision. If it is construed to modifyproviso (a) to Article 311 (2) of the Constitution of India then Section 12itself could be held to be ultra vires the Constitution. It is clear that proviso (a) to Article 311 (2) of the Constitution of India dispensing withprocedure prescribed in Article 311 (2) cannot be regarded as a"disqualification" within the meaning of Section 12 of the Probation ofoffenders Act. 1958. "the learned counsel for the respondent frankly conceded that thejudgment of the Full Bench would be applicable to the instant case. "this judgment of the Division Bench was challenged before the Supremecourt. The Supreme Court inparagraph 4 of the judgment concurred withthe view taken by the Division Bench and disapproved the reasoning ofthe learned Single Judge. In paragraph 4 of the judgment, the Supremecourt observed:"section 12 of the Probation of Offenders Act must be placed out of wayfirst. It provides that notwithstanding anything contained in any other law aperson found guilty of an offence and dealt with under the provisions of S. 3or 4 "shall not suffer disqualification" attaching to a conviction for an offenceunder such law. The order of dismissal from service consequent upon aconviction is not a "disqualification" within the meaning of S. 12. There arestatutes which provide that persons who are convicted for certain offencesshall incur certain disqualifications. The order of dismissal from service consequent upon aconviction is not a "disqualification" within the meaning of S. 12. There arestatutes which provide that persons who are convicted for certain offencesshall incur certain disqualifications. For example, Chapter III of the Representation of the People Act, 1951, entitled "disqualification formembership of Parliament and State Legislatures" and Chapter IVentitled "disqualifications for Voting" contain provisions which disqualifypersons convicted of certain charges from being members of legislatures orfrom voting at elections to legislatures. That is the sense in which theword "disqualification" is used in S. 12 of the Probation of Offenders Act. Therefore, it is not possible to accept the reasoning of the learned singlejudge of the Delhi High Court. "dealing with the merits of the case, the Supreme Court held:"it is to be lamented that despite these observations of the learnedmagistrate the government chose to dismiss the appellant in a huff withoutapplying its mind to the penalty which could appropriately be imposed uponhim in so far as his service career was concerned. Clause (a) of the secondproviso to Article 311 (2) of the Constitution confers on the Governmentthe power to dismiss a person from service "on the ground of conductwhich has led to his conviction on a criminal charge", but that power likeevery other power has to be exercised fairly, justly and reasonably. Surely,the Constitution does not contemplate that a Government servant who isconvicted for parking his scooter in a non-parking area should bedismissed from service. He may perhaps not be entitled to be heard on thequestion of penalty since Cl. (a) of the second proviso to Art. 311 (2)makes the provisions of that article inapplicable when a penalty is to beimposed on a Government servant on the ground of conduct which has ledto his conviction on a criminal charge. But the right to impose a penaltycarries with it the duty to act justly. Considering the facts of this case, therecan be no two opinions that the penalty ofdismissal from serviceimposed upon the appellant is whimsical. Accordingly we allow this appeal set aside the judgment of the Delhi Highcourt dated 10/10/1972 and direct that the appellant shall bereinstated in service forthwith with full backwages from the date of hisdismissal until reinstatement. The Government of India will pay to theappellant the costs of the suit, the First Appeal, the Second Appeal, theletters Patent Appeal and this appeal which we quantify at Rupees fivethousand. The Government of India will pay to theappellant the costs of the suit, the First Appeal, the Second Appeal, theletters Patent Appeal and this appeal which we quantify at Rupees fivethousand. The appellant will report for duty punctually at this formerplace of work on 1/04/1985. "the Supreme Court, referring to the circumstances to which the appellantbefore the Supreme Court was placed, observed:"the appellant was a victim of adverse circumstances: his son died infebruary 1962, which was followed by another misfortune: his wife felldown from an upper storey and was seriously injured: it was then the turnof his daughter who fell seriously ill and that illness lasted for eight months. The learned Magistrate concluded his judgment thus:-"misfortune dodged the accused for about a year. . . . . . . . . . and it seems thatit was under the force of adverse circumstances that he held back themoney in question. Shankar Dass is a middle aged man and it is obviousthat it was under compelling circumstances that he could not deposit themoney in question in time. He is not a previous convict. Having regard tothe circumstances of the case, I am of the opinion that he should be dealtwith under the Probation of Offenders Act, 1958. "the view taken by the Supreme Court 1s that Section 12 of the Probation ofoffenders Act, 1958 cannot be applied. The decision in "lqbal Singh Vs. Inspector General of Police and Others", AIR 1970 Delhi 240 runs counterto the view taken by the Supreme Court in shankar Dass Vs. Union ofindia and Another, AIR 1985 SC 772 = (1985) 2 SCC 358 . ( 25 ) IN "rajbirvs. State of Haryana", AIR 1985 SC 1278 , the appellant beforethe Supreme Court was convicted for an offence under Section 323 of the Code ofcriminal Procedure. The Supreme Court held:"from the judgment of the High Court it appears that though the sentenceimposed for the offence u/s. 323 of the Code was six months, the appellantand the co-accused had already suffered over one year s impriosonment. Ordinarily, in a situation as here, there would be no need to interfere. Learned counsel for the appellant has, however, pressed the appeal asthe appellant is in Government service and if the conviction and sentenceare maintained, he would lose his service. Both the parties to the assaultwere close relations. Ordinarily, in a situation as here, there would be no need to interfere. Learned counsel for the appellant has, however, pressed the appeal asthe appellant is in Government service and if the conviction and sentenceare maintained, he would lose his service. Both the parties to the assaultwere close relations. There is no material on the record to indicate thatthe appellant had any previous conviction, in the absence of suchevidence, we treat the appellant as a first offender, he is entitled to beadmitted to the benefits of probation under S. 3 of the" Probation ofoffenders Act, 1958, taking into consideration the circumstances of thecase, the nature of the offence and the character of the appellant. . Whilemaintaining his conviction we direct that he shall be released on probationof good conduct under S. 4 of the Act. The Chief Judicial Magistrate,bhiwani, before whom the appellant is directed to appear within four weeksfrom today shall release him after due admonition. We do not consider itnecessary to direct him to enter into a bond in the facts of the case. "the Supreme Court released the appellant on probation of good conduct, undersection 4 of the Probation of Offenders Act, 1958. It is significant to notice that thesupreme Court took note of the fact that if the conviction and sentence aremaintained, the appellant therein would lose his service. ( 26 ) IN "swam Singh Vs. State Bank of India and Another, 1986 (Supp) SCC566, following the view taken in Shanker Dass s case ( AIR 1985 SC 772 ), thesupreme Court passed the following order:-"the contention that the petitioner having been released under Section 4of the Probation of Offenders Act, 1958, the disqualification attaching to hisconviction for having committed an offence punishable under Section61 (1) (a) of the Punjab Excise Act, 1914 stood removed by Section 12 of theact, cannot prevail. The matter is concluded by the recent decision of thiscourt in Shankar Dass Vs. Union of India, (1985) 2 SLR 109 : (1985) 2scc 358 : 1985 SCC (Lands) 444. In that case the court has laid down thatconviction on a criminal charge was not adisqualification falling within thepurview of Section 12 of the Act. The matter is concluded by the recent decision of thiscourt in Shankar Dass Vs. Union of India, (1985) 2 SLR 109 : (1985) 2scc 358 : 1985 SCC (Lands) 444. In that case the court has laid down thatconviction on a criminal charge was not adisqualification falling within thepurview of Section 12 of the Act. It also referred to clause (a) of the secondproviso to Article 311 (2) of the Constitution which confers a power on thegovernment to dismiss a person "on the ground of conduct which has led tohis conviction on a criminal charge". It cannot therefore be said that thestate Bank of India could not take recourse to Section 10 (1 ) (b) (i) of thebanking regulations Act, 1949 indirecting the removal from service ofthe petitioner upon his conviction under Section 61 (1) (a) of the Act as hewas guilty of conduct which led to his conviction by the criminal courtinvolving moral turpitude. The special leave petition is accordingly dismissed. " ( 27 ) IN "trikha Ram Vs. V. K. Seth and Another", AIR 1988 SC 285 , The Supremecourt altered the punishment of dismissal into removal of service so that the order ofpunishment did not operate as a bar and disqualification for future employmentin any other organisation. ( 28 ) IN "union of India and Others . Bakshi Ram , MR 1990 SC 987, the Unionof India challenged the judgment of the Rajasthan High Court taking the view thatthe respondent was entitled to the benefits of Section 12 of the Probation ofoffenders, 1958 and the respondent did not suffer any disqualification. Therespondent was prosecuted for an offence under Section 10 (1) of the Centralreserve Police Force Act, 1949. The Magistrate (lst Class) and Commandant Groupcentre, CRPF, Deoli (Rajasthan) sentenced him to undergo Rl for four months. Inview of the conviction and sentence, the Department dismissed him from service. The respondent before the Supreme Court had preferred an appeal before thesessions Judge and the learned Sessions Judge, by judgment dated 22. 9. 1971,upheld the conviction but released him under Probation of Offenders Act, 1958 andreleased him under Section 4 of that Act upon furnishing a bond, as required. Afterexpiry of the period of good conduct, as mentioned in the judgment of thelearned Sessions Judge, the respondent, before the Supreme Court, moved thehigh Court of Rajasthan challenging the order of dismissal against him. 1971,upheld the conviction but released him under Probation of Offenders Act, 1958 andreleased him under Section 4 of that Act upon furnishing a bond, as required. Afterexpiry of the period of good conduct, as mentioned in the judgment of thelearned Sessions Judge, the respondent, before the Supreme Court, moved thehigh Court of Rajasthan challenging the order of dismissal against him. ( 29 ) THE High Court of Rajasthan, relying upon the Section 12 of the Probation ofoffenders Act, 1958, set aside the order of dismissal and directed his reinstatementin service. The High Court took the view that there was no disqualification for himto continue inservice. That was challenged before the Supreme Court. Dealing withthe scope of the conviction by a criminal court, the Supreme Court observed:"in criminal trial the conviction is one thing and sentence is another. Thedepartmental punishment for misconduct is yet a third one. The Courtwhile invoking the provisions of S. 3 or 4 of the Act does not deal withconviction; it only deals with the sentence which the offender has toundergo. Instead of sentencing the offender, the Court, release him onprobation of good conduct. The conviction however, remains untouchedand the stigma of conviction is not obliterated. In the departmentalproceedings the delinquent could be dismissed or removed or reduced inrank on the ground of conduct which has led to his conviction on a criminalcharge. See Art. 311 (2) (b) of the Constitution and Tulsiram Patel case,1985 Supp (2) SCR 131 at 282: ( AIR 1985 SC 1416 atpp. 1485-86 ). "dealing with the scope of Section 12, the Supreme Court observed: section 12 of the Act does not preclude the department from takingaction: for misconduct leading to the offence or to his conviction thereon asper law. The Section was not intended to exonerate the person fromdepartmental punishment. The question of reinstatement into service fromwhich he was removed in view of his conviction does not therefore, arise. That seems obvious from the terminology of S. 12. 0n this aspect, the Highcourts speak with one voice. The Madras High Court in R. Kumaraswamiaiyer Vs. The Commissioner, Municipa! Council, Tiruvannamalair,1957 0 Crlj 255 and Embru (P) Vs. Chairman Madras Port Trust, (1963) 1 Lablj49 (Mad) the Andhra Pradesh High Court in a. Satyanarayana Murthy Vs. That seems obvious from the terminology of S. 12. 0n this aspect, the Highcourts speak with one voice. The Madras High Court in R. Kumaraswamiaiyer Vs. The Commissioner, Municipa! Council, Tiruvannamalair,1957 0 Crlj 255 and Embru (P) Vs. Chairman Madras Port Trust, (1963) 1 Lablj49 (Mad) the Andhra Pradesh High Court in a. Satyanarayana Murthy Vs. Zonal Manager, LIC, AIR 1969 And Pra371, the Madhya Pradesh High Court in Prem Kumar s. Union of India,1971 0 Labic 823; The Punjab and Haryana High Court in Omprakash Vsthe director Postal Services (Posts and Telegraph Deptt.) 648 : (AIR1973 Punj and Har 1) (FB ). The Delhi High Court in Director of Postalservices Vs. Daya Nand, 1972 Serv LR 325 : 1972 Lab IC 736 haveexpressed the same view. This view of the High Courts in the aforesaidcases has been approved by this Court in T. R. Challappan s case, (1975) 2 Serv LR 587: ( AIR 1975 SC 2216 ). "ultimately, the Supreme Court observed:"section 12 is thus clear and it only directs that the offender "shall notsuffer disqualification, if any, attaching to a conviction of an offence undersuch law". Such law in the context is other law providing for disqualificationon account of conviction. For instance, if a law provides for disqualificationof a person for being appointed in any office or for seeking election to anyauthority or body in view of his conviction, that disqualification by virtue ofs. 12 stands removed. That in effect is the scope and effect of S. 12 of theact. But that is not the same thing to state that the person who has beendismissed from service in view of his conviction is entitled to reinstatementupon getting the benefit of probation of good conduct. Apparently, such aview has no support by the terms of S. 12 and the order of the Highcourt can,not, therefore, be sustained. "the dictum laid down by the Supreme Court is clearl. ( 30 ) IN "additional DIG of Police, Hyderabad Vs. P. R. K. Mohan", (1997)11scc 571, the scope of Section 12 of the Probation of Offenders Act, 1958 wasdealt with by the Supreme Court. A Division Bench of the Andhra Pradesh Highcourt held that as the respondent, before the Supreme Court, was dealt with undersection 12 of the Probation of Offenders Act, 1958, the order of dismissal wasliable to be quashed on that ground alone. A Division Bench of the Andhra Pradesh Highcourt held that as the respondent, before the Supreme Court, was dealt with undersection 12 of the Probation of Offenders Act, 1958, the order of dismissal wasliable to be quashed on that ground alone. The learned Single Judge had observedthat it cannot preclude the competent authorities from taking appropriate disciplinaryproceedings. The Supreme Court held:"it is settled law that Section 12 of the Probation of Offenders Act, 1958does not preclude the department from taking action for misconductleading to the offence or to his conviction thereon as per law. Thesection was not intended to exonerate the person from departmentalpunishment. It was clarified; the section only directed that the offendershall not suffer disqualification, if any, attaching to a conviction of anoffence under such law. Such law in the context is other law providing fordisqualification on account of conviction. This Court, therefore, heldthat merely because a sentence of imprisonment has been substituted byan order passed under Section 12 of the Probation of Offenders Act,1958, the effect of the conviction is not obliterated altogether and itwould beopen to the authorities to take departmental proceedings onthe basis thereof (see Union of India Vs. Bakshi Ram, 1 (1990) 2 SCC 426 : 1990 SCC (Lands 288: (1990 12 ATC 914 ). Therefore, the observation ofthe appellate court on the interpretation of Section 12 is not correct. But the learned Single Judge as well as the Division Bench while settingaside the order of punishment observed that the authorities/department willnot be precluded from taking appropriate disciplinary action against thedelinquent. Since we have clarified the law on the subject, the only thing leftfor the authorities would be to consider the effect of the modification in theorder of sentence from imprisonment to probation and pass a fresh orderwhether under Section 12 of the CRPF Act or dehors that provision. Wedo not think it necessary to interfere as we have indicated the scope of thefresh order to be passed by the authorities. We dispose of this appealaccordingly with no order as to costs. " ( 31 ) IN "harichand Vs. Director of School Education", AIR 1998 SC 788 ,the Supreme Court followed the principle laid down in Shankar Dass Vs. Unionof India and Another", AIR 1985 SC 772 = (1985) 2 SCC 358 . We dispose of this appealaccordingly with no order as to costs. " ( 31 ) IN "harichand Vs. Director of School Education", AIR 1998 SC 788 ,the Supreme Court followed the principle laid down in Shankar Dass Vs. Unionof India and Another", AIR 1985 SC 772 = (1985) 2 SCC 358 . The appellant beforethe Supreme Court was for an offence under Section 408 Indian Penal Code and was sentenced toundergo rigourous imprisonment for a term of two years and to pay a fine ofrs. 1,000. 00 The Sessions Court, in appeal, upheld the conviction and set aside thesentence and directed that the appellant be released on probation under Sectioni I4 (1) of the Probation of Offenders Act, 1958. As the appellant was convicted foran offence under Section 408 IPC. the appellant was dismissed from service bythe Director of School Education. That was challenged before the High Court ofpunjab andharyana. By order dated 25. 3. 1985, that was dismissed, which waschallenged before the Supreme Court. The High Court of Punjab andharyana tookthe view, "as the appellant has been released on probation, this would not affect hisservice career in view of the Section 12of the Probation of Offenders Act, 1958". The Supreme Court held:"in our view, Section 12 of the Probation of Offenders Act would apply onlyin respect of a disqualification that goes with a conviction under the lawwhich provides for the offence and its punishment. That is the plainmeaning of the words "disqualification, if any. attaching to a conviction of anoffence under such law" therein. Where the law that provides for an offenceand its punishment also stipulates a disqualification, a person convictedof the offence but released on probation does not, by reason of Section12, suffer the disqualification. It cannot be held that, by reason of Section12, a conviction for an offence should not be taken into account for thepurposes of dismissal of the person convicted from Government service. "( 32 ) IN view of the law laid down by the Supreme Court, the facts of the instantcase have to benoticed. On the 30th of July, 1991, the petitioner was dismissedfrom service on the basis of conviction by the criminal court. The matter wasultimately carried in apeeal before the Supreme Court. On the 11th of May, 1994,the Supreme Court passed the following order in Criminal Appeal No. 281/94 filedby the petitioner/ved Prakash:"leave granted. On the 30th of July, 1991, the petitioner was dismissedfrom service on the basis of conviction by the criminal court. The matter wasultimately carried in apeeal before the Supreme Court. On the 11th of May, 1994,the Supreme Court passed the following order in Criminal Appeal No. 281/94 filedby the petitioner/ved Prakash:"leave granted. The appellant has been convicted for the offence under Section 323ipc and has been sentenced for the period of imprisonment alreadyundergone. The learned counsel for the appellant has pointed out thatthe appellant was employed as Havaldar in the Army and had served in thearmy for more than 15 years and as a result of the sentence of imprisonmentwhich has been imposed on his, he has lost his job. The learned counselsubmits that if instead of being sentenced to imprisonment the benefit of theprovisions of Section 360 Criminal Procedure Code is granted to the Appellant he would beable to approach the authorities for consideration of his case. We have considered the facts and circumstances of the case and havingregard to the nature of the offence for which the appellant has beenconvicted we consider it a fit case in which the benefit of Section 360cr. P. C. should have been given to the appellant. The appeal is,there-fore, allowed. The conviction of the appellant under Section 323ipc is maintained but the sentence of imprisonment will stand substitutedby an order for release on probation under Section 360 Criminal Procedure Code on hisfurnishing a personal bond with one surety to the satisfaction of theadditional Sessions Judge, Bhiwani to keep the peace and be of goodbehaviour for a period of one year. "on the 23rd of August, 1994, the petitioner made arepresentation to the OICRecords. Raj RIF Records Officer, Delhi Cantt, which reads as under:-"1. 1. No. 2870389k Ex-Hav (GD) Ved Prakash Sangwan has served in Armyfrom 29/05/1976 to 15/07/1991 for the period of 15 years 1 month 18days. 2. Consequent to my conviction by High Court for offence punishable undersection 302 IPC, I was dismissed from the Army service by Commander170 lnfbdevideaasec20 (3)ofarmyact,1950w. e. f. 16/07/1991. 3. The said conviction has been set aside by the order of Hon'ble Supremecourt except the conviction under Section 323 IPC. 2. Consequent to my conviction by High Court for offence punishable undersection 302 IPC, I was dismissed from the Army service by Commander170 lnfbdevideaasec20 (3)ofarmyact,1950w. e. f. 16/07/1991. 3. The said conviction has been set aside by the order of Hon'ble Supremecourt except the conviction under Section 323 IPC. Accordingly, thesentence of imprisonment has been substituted by an order for releaseon probation under Section 360 Criminal Procedure Code on furnishing a personal bondwith one surety (copy of the order of Hon'ble Supreme Court is attachedherewith as Annexure 1 ). 4. 1 have already furnished a personal bond with one surety beforeadditional Sessions Judge, Bhiwani as required by the aforesaid order ofthe Supreme Court (copy of the same is attached as Annexure 2 ). 5. In view of the above, since my sentence of conviction for offence hasbeen substituted by an order of release by the Hon'ble Supreme Court ofindia, it is humbly requested that my order of dismissal may kindly be re-considered and the same be substituted by an order of discharge so that Imaybe eligible to draw my service pension and other benefits applicable toex-servicemen. "on the 18th of October, 1996, the Record Officer, OIC Records wrote to thepetitioner slating:"1. Refer to your application dated 0 7/08/1994. 2. Your case has been turned down by Ministry of Defence. In view ofabove you cannot be reinstated in the Army and no pensionary benefits readmissible to you. " ( 33 ) THE effect of the order of the Supreme Court dated 11. 5. 1994 is that therespondents could act under Rule 17 of the Army Rules, 1954. That Rule reads asunder:-17. Dismissal or (removal by Chief of Army Staff and by other ,officers.-Save in the case where a person is dismissed or removedfrom service on the ground of conduct which has led to his conviction by acriminal court or a court-martial, no person shall be dismissed orremoved under sub-section (1) or sub-section (3) of Sec. 20. That Rule reads asunder:-17. Dismissal or (removal by Chief of Army Staff and by other ,officers.-Save in the case where a person is dismissed or removedfrom service on the ground of conduct which has led to his conviction by acriminal court or a court-martial, no person shall be dismissed orremoved under sub-section (1) or sub-section (3) of Sec. 20. unless he hasbeen informed of the particulars of the cause of action against him andallowed reasonable time to state in writing any reasons he may have tourge against his dismissal or removal from the service:provided that if the opinion of the officer competent to order the dismissalor removal, it is not expedient or reasonably practicable to comply withthe provisions of this rule, he may, after certifying to that effect, order thedismissal or removal without complying with the procedure set out in thisrule. All cases of dismissal or removal under this rule where theprescribed procedure has not been complied with shall be reported tothe Central Government. " ( 34 ) THE question, in the light of the law laid down by the Supreme Court and therulings referred to above, is: "whether the respondents could act under Rule 17 ofthe Army Rules, 1954 and pass an order of dismissal against the petitioner?"there is no provision in the Army Act, 1950 and the Army rules, 1954 dealing withthe situation where a court of law had released a person on probation of goodconduct. At the time when the Army Act was enacted in 1950, there was a provisionin the Criminal Procedure Code. Therefore, while considering a case of an accusedwho had been released on probation, his case has to beconsidered in the light ofthe order passed by the Court releasing him on probation. When services of sucha person are dispensed with by the department concerned, it would not amount todismissal or removal within the meaning of Rule 17 of the Army Rules, 1954. Rule 17of the Army Rules, 1954 does not contemplate a case where any Army personnelhad been released on probation of good conduct. The order of the Supreme Courtin the instant case has to be given effect to. The respondents are bound by it byvirtue of Article 141 of the Constitution of India, the power exerciseable underrule 17 of the Army Rules, 1954 is subject to the order of the Supreme Court. The order of the Supreme Courtin the instant case has to be given effect to. The respondents are bound by it byvirtue of Article 141 of the Constitution of India, the power exerciseable underrule 17 of the Army Rules, 1954 is subject to the order of the Supreme Court. Thequestion, inter alia, arises, could it be said that after an Army personnel is releasedon probation of good conduct, he can be dismissed from service on the premisethat his conviction is maintained by the Supreme Court. The legal effect of theorder of the Supreme Court is that no doubt the conviction remains, but it getsdissolved in the order of the Supreme Court without, in any way, affecting the right ofthe Army personnel to get his pension. The services of the Army personnel couldbe dispensed with. If that is not so, full effect of the order of the Supreme Courtcannot be achieved and the order of the Supreme Court would become brutumfulmen. Such a situation is not envisaged in the Constitution of India. ( 35 ) REGULATION 113 of the Pension Regulations for Army, 1961 reads as under:-Individuals dismissed or discharged under the Army Act113. (a) An individual who is dismissed under the provisions of thearmy Act, is ineligible for pension or gratuity in respect of previous service. (b) An individual who is discharged under the provisions of Army Act and therules made thereunder remains eligible for pension or gratuity underthese Regulations. "the right of a person to get pension has to be considered as per this regulation, ifhe is discharged from service. The words 'discharge', 'dismissal' or 'removal' arenot defined in the Army Act, 1950 and the Army Rules. 1954. In the servicejurisprudence, when a person is dismissed from service, there is no chance of hisgetting employment elsewhere. But if a person is discharged from service, thatwould not affect his rights to get pension and other benefits. This Court had anoccasion to consider the scope of an order passed by the Defence Departmentwhere services of a person were dispensed with invoking power under Section 18of the Air Force Act, 1950. That Section reads as under :-"18. Tenure of service under the Act.-Every person subject to this Actshall hold office during the pleasure of President. This Court had anoccasion to consider the scope of an order passed by the Defence Departmentwhere services of a person were dispensed with invoking power under Section 18of the Air Force Act, 1950. That Section reads as under :-"18. Tenure of service under the Act.-Every person subject to this Actshall hold office during the pleasure of President. COMMENTThe doctrine of Presidential pleasure.-The constitutional power of thepresidentunder Art. 310 and Sec. 18 of the Act could not possibly be judgedon the touchstone of Art. 14 of the Constitution of India. An individual actof the President in exercise of that power may perhaps be capable of beingjudged at that touchstone where for example two similarly situated officersmay have been differently dealt with but that situation does not obtain in thepresent case because it is not the case of the petitioner that a similarlysituated officer, as he was, was differently dealt with. Even if the twopowers, the power of the President under Art. 310 and under Sec. 18 of theact and the power of the Central Government under Sec. 19 of the Act mayultimately, having regard to the Government of India (Allocation of Business)Rules, 1961, be exercisable by the same authority. The foundation of thetwo powers is distinct and could not be ignored. The former is found in theconstitution and is the Presidential power which the Central Governmentis competent to exercise by virtue of the Government of India (Allocationof Business) Rules, 1961. The power of the Central Government is astatutory power which it is competent to exercise by virtue of being thecentral Government. The two powers could not, therefore, be equated inthe matter of testing if they are capable of being abused, or besubjectedto colourable exercise. " ( 36 ) THIS Court dealt with that aspect in LPA. 94/75 by judgment dated 24. 8. 1981in "hazara Singh Vs. Union of India etc. ". In the LPA, the Division Bench dealtwith the order of the learned Single upholding the order of the President dismissingthe appellant from service. The appellant was also denied the pensionarybenefits. He filed CWP. 1129/79. Both the LPA and the writ petition were heard bythe Division Bench. Separate judgments were rendered by the Division Bench. The judgment rendered in the writ petition is reported in "hazara Singh Vs. Chiefof the Air Staff', 1982 (1) SLR 521 . ( 37 ) THE learned counsel for the petitioner, Mr. He filed CWP. 1129/79. Both the LPA and the writ petition were heard bythe Division Bench. Separate judgments were rendered by the Division Bench. The judgment rendered in the writ petition is reported in "hazara Singh Vs. Chiefof the Air Staff', 1982 (1) SLR 521 . ( 37 ) THE learned counsel for the petitioner, Mr. J. S. Minhas, referred to thejudgment of the Division Bench in the above cited case. ( 38 ) THE appellant in the LPA before the Division Bench was granted Commissionon the 4th of November, 1949 and on the 16th of March, 1971, the appellant, whenhe was working as Wg. Commander, was issued with a show-cause notice. On the21st of September, 1971, an order was passed under section 18 of the Air Forceact, 1950 dismissing the appellant from service with immediate effect. The Divisionbench observed:"though we, therefore, uphold the impugned order and will affirm thejudgment of the single judge we cannot but observe that in case the poweris exercised under Section 18 in terms of Article 310 of the Constitution itwould be advisable for the authorities to avoid using the word 'dismissal'which in common parlance does amount to punishment and amounts tocasting a stigma on an employee. But for the fact that the appellant is amember of the defence forces, and action is undersection 18 of the Act,the use of the word 'dismissal' would have made the order bad if noenquiry had been held previously. The reason is that because the Act alsoby Sec. 10 provides that if a person is to be penalised an enquiry mustprecede it. If therefore the President chooses to exercise his pleasureunder Article 310 he may simply terminate an employee's service withoutusing the word 'dismissed' which has in common parlance come to meantermination by way of punishment. It is well to remember that it not onlynecessary that justice is done but that it must seem to be done. It isessential to give a greater assurance to the members of armed force (who do not enjoy many of the statutory safeguards enjoyed by membersof civil services) and who must bereassured that a serious application ofmind was made at the highest before taking action against him. We neednot say more. "there, having rejected the case of the petitioner that the order of dismissal shouldbe set aside, the respondents dealt with his claim for pension. By memo dated27. 4. We neednot say more. "there, having rejected the case of the petitioner that the order of dismissal shouldbe set aside, the respondents dealt with his claim for pension. By memo dated27. 4. 1979, the petitioner in the writ petitioner was asked to show cause why hispension should not be forfeited under Regulation 16 (a) of the Pension Regulations. By Order dated 4. 6. 1979, the pension was forfeited. The argument before thedivision Bench was that the respondents therein were not entitled to invoke thepower under Regulation 16 (a) of the Pension Regulations as the services of thepetitioner were dispensed with under pleasure doctrine envisaged in Article 310of the Constitution of India and the Section 18 of the Air Force Act, 1950. Thequestion posed by the Division Bench was:"that real question that calls for determination is whether Regulation 16 (a) will apply to the case of a person against whom dismissal or removalorder is not passed as a measure of punishment as provided in the Act buthe is dismissed from service under the pleasure doctrine of the President"regulation 16 (a) Section 1, Chapter II of the Pension Regulations for Air Force,1961 reads as under:-"when an officer who has to his credit the minimum period of qualifyingservice required to earn a pension, is cashiered or dismissed or removedfrom the service his pension may. at the discretion of the President, beeither forfeited or be granted at a rate not exceeding that for which hewould have otherwise qualified had he required on the same date. "the Division Bench held;"now, it would be understandable if as a consequence of court martial or theenquiry under the Act and Rules a person is dismissed or cashiered, wherehe has had full opportunity to meet the charge and to prove his innocence,but hassled and thereafter, an order forfeiting pension is made. Insucha course 'the officer would know the reasons for proceeding against himand could in 'answer to proceedings under Regulation 16 (a) show that noorder of forfeiture or total forfeiture of pension should be made. But where,as in the present case dismissal is in exercise of Presidential pleasureunder Article. 310 of Constitution read with Section 18 of the Act. It isapparent that no reasons will be told or known to the officer. But where,as in the present case dismissal is in exercise of Presidential pleasureunder Article. 310 of Constitution read with Section 18 of the Act. It isapparent that no reasons will be told or known to the officer. In such a caseif Regulation 16 (a) could be invoked it would virtually amount to condemningand depriving a person of his pension without giving him an opportunitybecause in such a situation what could, an officer say, in his defence, whenhe does not know the reason why Presidential pleasure has beenwithdrawn from him. These considerations lead us irresistible to theconclusion that resort could only be had to Regulation 16 (a) if it had beenpreceded by an order of dismissal, or cashiering either in pursuance of acourt martial trial or in pursuance of an action taken undersection s 19 and20 of the Act and the rules. As admittedly none of the eventualities werepresent the condition precedent to taking action under Pension Regulation16 (a) were lacking. The respondents seek to justify the action underregulation 16 (a) on the sole ground of use of the word dismissed evenwhen the order of 21. 2. 1971 is passed under Section 18 of the Act. Though the pleasure doctrine is quite all embracing still we must not forgetthat our Constitution adhors arbitrariness, and proclaims clearly that it is agovernment of laws and not of men that we are having, so that interpretationwhich permits an unfettered way of arbitrary action must necessarily receiveshort shrift when interpretation of statute is given by the courts. We are ofthe view that the jurisdiction to take action underpension Regulation 16 (a)arises only when an officer has been dismissed or cashiered, as a measureof punishment. Admittedly that isnot the case in the present instance. Thusthe President lacked the jurisdiction to proceed against the petitionerunder Pension Regulation 16 (a ). The impugned order of 4. 6. 1979 is,therefore, without authority of law arid deserves to bequashed. "the Division Bench issued a writ of mandamus directing the respondents to paypension to the petitioner. The situation in the instant case is different as there wasno conviction by a criminal court. Even though there is conviction as the petitionerhad been dealt with under the Probation of Offenders Act, 1958, as observed bythe Supreme Court in "union of India and Others Vs. The situation in the instant case is different as there wasno conviction by a criminal court. Even though there is conviction as the petitionerhad been dealt with under the Probation of Offenders Act, 1958, as observed bythe Supreme Court in "union of India and Others Vs. Tulsiram Patel", AIR 1985sc 1416 = (1985) 3 SCC 398 , the respondents ought to have considered the caseof the petitioner for the grant of pension. ( 39 ) THE learned counsel for the petitioner, Mr. J. S. Manhas, heavily relied on ajudgment of this Court in "a. K. Malhotra \/s. Union of India and Others', 1997 (4)SLR 151. In that case, a Full Bench of this Court had to consider the scope ofregulation 16 (a) of the Pension Regulations, 1961 and Rules 14 (5) and 15 of thearmy Rules, 1954 on a reference made by a learned Single Judge of this Court. The petitioner before the Full Bench was tried by GCM and he was found guilty of afew charges. The punishment imposed was cashiering, rigourous imprisonment forsix months and forfeiting all arrears of pay and allowances and other public moneydue to him at the time of cashiering. When the matter went to the Chief of Army Stafffor confirmation, the Chief of the Army Staff confirmed first two sentences. Withreference to the third forfeituring of pay and allowances, that was remitted. Thatmeans the sentence imposed by the Court Martial with reference to forfeituringstood set aside. The orders were promulgated on the 16th of March, 1991. Thepetitioner in that case retired on the 31st of May, 1990 and he was initially paid aprovisional pension. On the 13th of November, 1992, a show-cause notice wasissued to him under Regulation 16 (a) of the Pension Regulations for Army, 1961 asto why his pension should not be forfeited. On the 4th of January, 1994, the Presidentof India passed an order forfeiting the entire pensionary benefits of the petitionertherein. That was challenged before this Court. Making a comparative study of therights of persons in civil service and in the Army, the Full Bench observed: (i) While a person employed in the civil services can be sentenced by anordinary Criminal Court, the said Criminal Court does not have power todismiss the person from service nor reduce him in rank nor order that hisretiral or other benefits be forfeited. But the position of those governed bythe Army Act is different. But the position of those governed bythe Army Act is different. The Court Martial has power under Section 71 ofthe Army Act-as part of the power to impose punishments to orderdismissal, reduction of rank/forfeiture of pay, pension etc. (ii) Again while a person employed in the civil service and who is laterdismissed from service after a departmental inquiry or consequent toconviction by an ordinary Criminal Court is not entitled to pension, theposition in the Army is different. Army personnel, even if dismissedfrom service either in a departmental inquiry or who are cashiered pursuantto Court Martial, can be granted pension under Regulation 16 (a) wholly orin part. To that extent, the Army personnel are better placed than thosein civil services. "rule 14 (5) of the Army Rules, 1954 was empowered to terminate the service ofarmy personnel for misconduct after a departmental inquiry, or conviction by anordinary criminal court with or without pension. ( 40 ) THE situation is similar to the position that would emerge on a reading Rule 17of the Army Rules, 1954 and Regulations 113ofthepension Regulations for Army,1961. The Full Bench, in "a. K. Malhotra Vs. Union of India and Others", 1997 (4)SLR 151. ultimately, held:-"from the aforesaid rulings, the legal position can be summarised asfollows: Under Regulations 3 and 4 so far as pension is concerned andregulations 2a and 4 so far as gratuity is concerned, army personnelhave normally a right to pension or gratuity and other benefits to the extentthe Court Martial has not, as a measure of punishment for an offence,though it fit to deprive them of. It is then in the discretion of the Presidentacting under Regulation 16 (a) to forfeit a part of whole of their pension. This discretion is not absolute. Merely because the punishment ofcashiering, dismissal or removal has been imposed by the Court Martial,the pensionary benefits under Regulation 16 (a) or other benefits do notstand forfeited. On the other hand, the fact that upto the date of theoffences which were the subject-matter of Court Martial proceedings,the service was satisfactory and the fact that the Court Martial had notthought it fit to forfeit the whole or part of pensionary or other benefits,ought to be taken into account by the Competent Authority underregulation 16 (a ). On the other hand, the fact that upto the date of theoffences which were the subject-matter of Court Martial proceedings,the service was satisfactory and the fact that the Court Martial had notthought it fit to forfeit the whole or part of pensionary or other benefits,ought to be taken into account by the Competent Authority underregulation 16 (a ). Even while considering these later factors, the normalrule is that pensionary and other benefits are to be granted unless thecompetent Authority comes to the conclusion that the service of theofficer taken as a whole was not satisfactory from the beginning orunless the offences which are proved and for which he has been sentencedare so extraordinarily grave that the entire previous satisfactory service isto be excluded from consideration. That would be a rare situation. Indeedif the offence committed was so extraordinarily grave, one would haveexpected the Court Martial itself to forfeit the pensionary or other benefits. If,therefore, the Court Martial, in a given case, did not think that the offence;. wiped out the rights accrued from and otherwise satisfactory service,then the Competent Authority must, in our view record good reasons as towhy the normal ruleof granting pensionary and other benefits is not to befollowed and as to why the authority thinks that this is an extraordinarilygrave case where these benefits should be totally or partially cut. Thereference is answered accordingly. Applying the aforesaid principles to the show cause notice and the order ofpunishment, we are satisfied on perusal of the record which has beenplaced before us by the Government that neither the impugned order northe record produced before us contains any indication that the aboveprinciples were borne in mind by the Competent Authority. If the Courtmartial did not think of forfeiting the pension and other benefits (and infact the third sentence of depriving these benefits was set aside on revision),then good reasons must be recorded or assigned for not following thenormal rule of grant of pension etc. , if the service was otherwise satisfactoryupto the date of commission of these offences. No extraordinary gravesituation referable to an offence which had the effect of wiping out theotherwise satisfactory service has been relied upon nor recorded. Thefact that provisional pension was given from 1. 6. 90 for a few years was alsonot taken into account. , if the service was otherwise satisfactoryupto the date of commission of these offences. No extraordinary gravesituation referable to an offence which had the effect of wiping out theotherwise satisfactory service has been relied upon nor recorded. Thefact that provisional pension was given from 1. 6. 90 for a few years was alsonot taken into account. It is clear to us that an assumption was made, whichis not warranted by law, that the very sentence of cashing and 6 months R. Iwas sufficient to require denial of full pensionary benefits (vide Flag A, Note38 and page 5 B (Zila Sainik Board's report ). We have, therefore, nooption but to quash the impugned order. "the Full Bench posited:we quash the impugned order for the aforesaid reasons. The quashing ofthe order would naturally require the respondents to reconsider the matterin the light of the legal principles laid down above. We order accordingly. "the ultimate decision of the Full Bench is:"a further question has arisen as to whether in respect of these pensionmatters, we should leave the parties to fight out a fresh litigation in theevent the respondent passing an order adverse to the petitioner whollyor partly. Heaving regard to the long delay in the matter and on a considerationof the facts and submissions. we have though it fit to issue the followingdirections:1. The respondents will issue asupplemental show cause notice, considerthe reply of the petitioner and pass fresh orders in the light of what isstated above, within 6 months from today. 2. The supplementa show cause notice, reply thereto and the decisiontaken will be filed in the writ petition. 3. In case the orders go in favour of the petitioner no question arises. Incase, however the petitioner is not satisfied with the order, he can fileobjections to the same and the correctness of the order can be decidedthereafter rather than drive the petitioner to a fresh writ petition and anlpa etc. The respondents have not rejected to this course. The writ petition is allowed, the impugned order is quashed and the petitionis disposed of in terms of the above directions. The respondent will decideafresh his entitlement to pension, gratuity and other retiral benefitsincluding leave encashment. "here also, the situation is different as there is no conviction by a criminal court. The respondents have not rejected to this course. The writ petition is allowed, the impugned order is quashed and the petitionis disposed of in terms of the above directions. The respondent will decideafresh his entitlement to pension, gratuity and other retiral benefitsincluding leave encashment. "here also, the situation is different as there is no conviction by a criminal court. ( 41 ) THE legal position which emerges out of the above discussion is that if aperson is released on probation by a criminal court after maintaining the conviction,at the time of dispensing with the services, it is incumbent on the respondentsto consider the past service of the personnel and then decide whether even thoughthe personnel had been released on probation of good conduct, he could be deprivedof his pension. The petitioner had averred in the writ petition that he was promotedto the rank of Havaldar on merit in normal course. He was not awarded any minoror major punishment during his service. He was sent for training as a Unitinstructor Signals and other courses obtaining very high grading. The petitionerstated that the criminal case was set up against him owing to some rivalry amongthe relations. The respondents have not denied these facts in the counter. In theletter dated 18. 10. 1996, no reasons have been given by the respondents. Asmentioned inparagraph 12 of the counter-affidavit, which is already extracted, theonly answer given with reference to the claim of pension is that the petitioner isdismissed from service. Under the circumstances, this is no answer at all in law. The respondents had failed to act in accordance with taw in dealing with the claim ofthe petitioner for pension. The Record Officer, white communicating the order ofministry of Defence, had dealt with the claim of reinstatement and had stated thatno pensionary benefit is admissible to the petitioner. This is no consideration inaccordance with law. ( 42 ) THE case presents a situation sui-generis with reference to the right of an Armypersonnellike the petitioner being dealt with under Rule 17 of the Army Rules, 1954when he is released under Probation of Offenders Act, 1958 by the Supreme Court. The point is res integra. The order passed by the respondents sending thepetitioner out of service cannot be characterised as dismissal or removal or dischargesimplicitor. The point is res integra. The order passed by the respondents sending thepetitioner out of service cannot be characterised as dismissal or removal or dischargesimplicitor. The word 'discharge' has its own connotation in the light of Section23 of the Army Act, 1950 and the Ruls 11 and 12 of the Army Rules, 1954. Thepetitioner's services can be dispensed with under Rule 17 in view of the conviction,but in the light of the order of the Supreme Court dated 11. 4. 1994, the right ofthe petitioner to get pensionary benefits cannot be denied. Keeping in view thecomparative study of the rights of persons in civil service and in the Army by the Fullbench of this Court in "a. K. Malhotra Vs. Union of India and Others", 1997 (4)SLR 151, it is hereby declared that the order passed by the respondents dismissingthe petitioner from service is only dispensing with his services. The letter dated18. 10. 1996 denying the pensionary benefits to the petitioner is set aside. ( 43 ) THE respondents shall grant pensionary benefits to the petitioner in view of hispast service and orders to that effect shall be issued by the respondents on orbefore the 30th of June, 2000. ( 44 ) THE writ petition stands allowed to the above extent. ( 45 ) THERE shall be no order as to costs.