BERI, C.J.—The six petitioners before us are Railway servants who were removed/dismissed from service because each one of them was convicted for an offence by a criminal court. They complain that notwithstanding the fact that they were given the benefit of the provisions of the Probation of Offenders Act (hereinafter called "the Probation Act") they have been removed or dismissed. They have challenged their order of removal/dismissal on the grounds that it was contrary to the provisions of sec. 12 of the Probation Act or at any rate inconsistent with the objects of that statute and that it is violative of the principles of natural justice as they were never heard before removal or dismissal. The learned Single Judge, before whom these petitions were presented, found it necessary to refer these cases to a Division Bench because Tyagi,J. in S.B. Civil Writ petitions Nos. 481, 482, 516, 517 and 600 of 1966 by his judgment dated December 19, 1969, had held that even in a case covered by clause (c) of the proviso to Art. 311(2) of the Constitution of India the principles of natural justice had to be complied with. Learned Single Judge who has referred these cases to us felt that in view of the Full Bench decisions of the Delhi and the Punjab and Haryana High Courts, to which we shall presently refer, the view taken by Tyagi J. requires reconsideration.

2. To eliminate repetition we first propose to deal with general arguments which have been urged in all the cases. Mr. Dave, learned counsel for one of the petitioners, urged that sec. 12 of the Probation Act has removed all disqualifications attaching to a conviction; that it is a mile-stone in the evolution of penalogy intended to reform and rehabilitate an offender and if a conviction was treated a disqualification for holding a civil post it would be contrary to the very objects of the Probation Act. Once a criminal court had considered the circumstances of the case including the nature of the offence and the character of the offender and extended the benefit of the Probation Act the departmental authority, urged the counsel, should respectfully agree rather than throwing the offender out of employment.

3. Mr. L.R. Bhansali, learned counsel for the Railway, urged that there was nothing in the Railway Establishment Code which said that a person who had been convicted was disqualified from holding a civil post in the Railway. The removal of disqualification under sec. 12 of the Probation Act relates to a disqualification, if any, attaching to a conviction for an offence under such law and, therefore, it was competent for the punishing authority to consider whether a person who has been given the benefit under the Probation Act should or should not be retained in the Railway service. He placed reliance on the decided cases and particularly on Omprakash vs. Director Postal Services(l) and Director of Postal Services vs. Dayanand(2).

4. Let us now examine some of the decided cases on this subject by various High Courts. The Madras Probation of Offenders Act, 1936 has sec. 12-A which is substantially the same as sec. 12 of the Probation Act. R. Kumaraswami Aiyar vs. The Commissioner, Municipal Council, Tiruvannamalai (3) was a case of an Upper Division Clerk in a Municipal Office at Tiruvannamalai. He was charged for the offence of cheating and was convicted but instead of being sentenced in view of his youth he was given the benefit of sec. 4(1) of the Madras Probation of Offenders Act. The Municipal Commissioner issued a memo to the petitioner directing him to show cause why his service should not be terminated. The petitioner submitted an explanation and pleaded sec. 12-A of the Probation of Offenders Act as a bar to disciplinary action. The petitioner moved the High Court of Madras for a writ of prohibition and Raja-gopala Ayyangar, J. observed,—

"In my view sec. 12-A is incapable of the construction sought to be put upon it on behalf of the petitioner. What the section says is Shall n

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