MAHESHWARI, J. - (1.) THIS writ petition by the Union of India and others is directed against the order dated 22.8.2000 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in Original Application No. 212/1996 whereby the Tribunal allowed the application submitted by respondent No. 1 Vishnu Lal Nai and while maintaining the findings of disciplinary authority and the appellate authority on the charges against him, modified the punishment awarded to him.
(2.) THE facts leasing to the present petition could be summarised thus: Respondent No. 1 Vishnu Lal Nai was working as Postman at the Sub-Post Office, Devgarh when he was served with a charge-sheet on 21.10.1994 with the allegations that while working as postman at Sub-Post Office, Devgarh on 17.8.1994 at about 17.50 hours in the evening, he entered the office of Inspector, Post Office, Devgarh and misbehaved with the Inspector, Shri Pratap Thakur by hurling abuses at him and threw down two chairs of the office which fell near the door. This act of the respondent was of gross indiscipline and of indecency and in the breach of dignity required to be maintained with the higher officials. THE act of delinquent was stated to be wholly unbecoming of a government employee and in violation of Rule 3(1)(iii) of the Conduct Rules. A regular enquiry was conducted in accordance with the requirements of Central Civil Services (Classification, Control & Appeal) Rules, 1965. THE enquiry officer submitted his report on 27.3.1995, copy of the same was served upon the delinquent who submitted his representation also on 15.4.1995. THE disciplinary authority considered the matter in sufficient detail and dealt with the objections of the delinquent about denial of opportunity of hearing also and found that the enquiry had been conducted squarely in conformity with the requirements of law and found that the charge against the delinquent was amply established by evidence on record. After agreeing with the findings of the enquiry officer, the disciplinary authority observed that the act of delinquent and his behaviour with his higher officer was not only indecent but was an obnoxious conduct in which all the principles of discipline have been brushed aside and the employee has lost his right to remain in government service. THEreafter, the disciplinary authority observed that the past record of the employee was also indicative that the employee had been acting in breach of the discipline from time to time but department every time afforded him with opportunity to correct himself but he did not come true and the previous clemency has resulted in boosting of his attitude and he did not refrain from repeating the act. According to the disciplinary authority, if the employee would be forgiven this time, the same would be a serious mistake which might send wrong signals to other employees for indulging in discipline and the delinquent would become unruly. THErefore, the disciplinary authority formed the opinion that tolerating such employee would not be in the interest of the department and it was necessary that department gets rid of such employee and hence, in this direction, removal is the only punishment available, however his family should not suffer on account of his misdeeds, and therefore, passed the passed the order of punishment of compulsory retirement on 28.4.1995. The delinquent-respondent No. 1 took the matter in appeal and the appellate authority noted, considered and rejected all his contentions and dismissed the appeal by the order dated 15.12.1995. For the subject matter of present writ petition, suffice is to notice that so far the consideration of the past conduct was concerned, the appellate authority noted the contention of the appellant that while deciding his disciplinary matter, it was not proper on the part of disciplinary authority to take the past record as a basis and the same was contrary to rules also because the past record and punishment etc. were not the subject matter of enquiry. This contention was repelled by the appellate authority with the finding that the disciplinary authority had issued the order of punishment after agreeing with the findings of enquiry officer and after charge having been established and therefore, the contention of the appellant that the past record, punishment etc. were the only basis of punishment order cannot be accepted. The delinquent-respondent No. 1 Vishnu Lal challenged the orders dated 20.4.1994 passed by the disciplinary authority and dated 15.12.1995 passed by the appellate authority by OA No. 212/1996 before the Central Administrative Tribunal. The learned Members of the Tribunal rejected the contention of the applicant questioning want of sufficient opportunity of hearing to him and found no reason to interfere with the findings recorded by the disciplinary authority and the appellate authority. After affirming the findings of the authorities on the charges, the Tribunal took up for consideration the contention regarding quantum of punishment imposed. The Tribunal considered that according to the charges framed against the applicant, while working as postman in the Post Office, Devgarh, he entered into the office of the Inspector at 17.50 hours on 17.8.1994 and hurled abuses at the Inspector and misbehaved with him and threw chairs which fell down near the gate. However, the Tribunal noted that the disciplinary authority proposed punishment of compulsory retirement of the applicant stating that the applicant's past record revealed that he was violating normal rules of conduct for which he was informed from time to time but he did not improve his conduct inspite of several opportunities. The Tribunal also noted the observation of the disciplinary authority that because of the leniency shows by the Department, the applicant's courage got boosted and that if such conduct be allowed to continue, it might encourage other employees which would not be in the interest of administration. In those circumstances, the applicant was held liable for punishment of compulsory retirement and accordingly that punishment was imposed by the disciplinary authority and confirmed by the appellate authority. The Tribunal noticed that the punishment of compulsory retirement was imposed on consideration of the alleged past conduct of the applicant without the applicant being informed of the same. Referring to the decisions of the Hon'ble Supreme Court and of this Court, the Tribunal noted the principle that taking into account of the past conduct of the delinquent without informing him of the same was illegal. The Tribunal found that it was not disputed by the respondents that the applicant was not informed of his alleged past conduct either as a part of the charge or the particulars filed in support of the charges and keeping in view the past conduct only, the disciplinary authority found that if the applicant would not be compulsorily retired, it would be sending a wrong signal to the other employees. The Tribunal wondered that if the applicant's past conduct was not to be considered then, in all probability, the disciplinary authority would not have awarded the punishment of compulsory retirement. The Tribunal observed that since the order of compulsory retirement was passed without informing him of his past conduct, the punishment of compulsory retirement would be unconscionable and it was severe and harsh. In those circumstances, in the interest of justice and equity, the Tribunal thought it proper to modify the punishment by imposing a punishment of reduction to next lower stage in time scale of pay for a period of three years with cumulative effect instead of compulsory retirement. The Tribunal also ordered that the applicant would be entitled to all the consequential benefits. The order passed by the Tribunal dated 22.8.2000 has been challenged in this writ petition. We may point out that this writ petition came up for admission for the first time on 11.12.2000 before a Division Bench of this Court. The Division Bench observed that ordinarily the Court or Tribunal would not have interfered with the punishment imposed against the workman in the domestic enquiry, unless it was grossly disproportionate to the misconduct which is found proved in the domestic enquiry. The Division Bench noted that the misbehaviour as charged against the applicant was not approved but at the same time, when question of imposing punishment arises, then the authority must bear in mind that it should be commensurate to the misconduct. Under the circumstances of the case, the Division Bench was of the opinion that when the Tribunal was convinced the penalty of compulsory retirement was shockingly disproportionate to the misconduct found to be proved against the applicant and the Tribunal thought it fit to modify it by passing a penalty of reduction to next lower stage in time scale of pay for a period of three years with cumulative effect, then certainly this Court would not interfere in its supervisory jurisdiction under Article 227 of the Constitution. The Division Bench also observed that ordinarily the Court or Tribunal should remand the matter to the concerned authority on the point of sentence but in this case, the order of penalty was passed way back on 17.4.1994 and was confirmed in appeal on 15.12.1995. Therefore, after a period of five years, it would not be proper for the Tribunal to remand the matter on the point of punishment. The Court, therefore, held,-"Considering the peculiar facts and circumstances of the case and the impugned order passed by the Tribunal, we do not want to exercise our supervisory jurisdiction under Article 227 of the Constitution". However, the Division Bench after reaching the aforesaid finding noted the contention of the learned counsel for the writ petitioners that they would be required to pay back wages to the original applicant, if he would be reinstated in service with the modified order of punishment and then it would no punishment be at all because he would be paid back wages of last five years. Learned counsel referred to the operative portion of the order passed by the Tribunal stating that the applicant would be entitled to all consequential benefits. After noticing these contentions, the Division Bench passed the following order:- "It seems that there is some wrong apprehension in the mind of the petitioners about the back wages. It is true that while modifying the order of punishment, the Tribunal has ordered that the applicant would be entitled to all the consequential benefits. However, the Tribunal has rightly not awarded back wages in view of the fact that it had modified the punishment of compulsory retirement by passing the penalty of reduction to the next lower stage in time scale of pay for a period of three years with cumulative effect. Therefore, in our considered opinion, the original applicant would be entitled to all the consequential benefits of service except the back wages." With the aforesaid observations and directions, the petition was ordered to be dismissed and so also the stay petition. As already noted above, the writ petition was taken up for the first time by this Court on 11.12.2000 when the aforesaid order was passed and there was no notice issued to the respondent-the delinquent employee.
(3.) THE aforesaid order dated 11.12.2000 was challenged by respondent No. 1 Vishnu Lal, before the Hon'ble Supreme Court in Civil Appeal No. 7193/2001 arising out of SLP (C) No. 9530/2001. THE Hon'ble Supreme Court found that this Court appeared to have construed the order of the Tribunal against the appellant (employee), without even noticing him, thereby grossly prejudicing his interest. In that view of the matter, the order dated 11.12.2000 was set aside and the Hon'ble Apex Court directed that the High Court may reconsider the matter in accordance with law. THE order passed by the Hon'ble Supreme Court reads thus:- "Leave granted. Heard the learned counsel for the appellant and learned Additional Solicitor General for the Union of India. THE High Court appears to have construed the order of the Tribunal against the appellant, without even noticing him, thereby grossly prejudicing the interest of the appellant. In that view of the matter, we set aside the impugned order of the High Court and direct that the High Court may reconsider the matter in accordance with law. This appeal stands disposed of accordingly." In view of the order passed by the Hon'ble Supreme Court and in terms of the directions therein, this writ petition was restored to its original number and placed before the Court for admission. Initially, this Court issued notices of the writ petition and stay petition on 10.1.2002 and later after hearing both the parties, the writ petition was admitted on 15.3.2002. Further, on 23.4.2002, after hearing the parties, this Court ordered stay over payment of back wages to Vishnu Lal till the disposal of the writ petition and the writ petition was ordered to be listed for final hearing in the month of August, 2002 and preparation of the paper book was dispensed with. It seems that thereafter, the matter was listed for hearing on several occasions but did not reach. The matter was placed before us on the application of the applicant-respondent No. 1 seeking early hearing of the writ petition and in view of the order for final hearing having already been passed and with the consent of learned counsel for the parties, we have heard the matter finally. Learned counsel for the petitioners strenuously argued that the Tribunal was in error in modifying the punishment. Learned counsel submitted that awarding of penalty is in the discretion of the competent authority and the same was not required to be disturbed unless it was found that the punishment was awarded with malafides or for extraneous considerations. The learned counsel also submitted that even when it was found that the punishment awarded was improper, the matter was required to be remitted to the competent authority and the Tribunal could not have substituted its discretion in the matter of punishment. It was also submitted that respondent-Vishnu Lal had every opportunity to explain the position in relation to the past incidents and past record. The delinquent could not dispute the existence of the facts even in appeal before the appellate authority. In such circumstances, according to the learned counsel, when no denial or rebuttal was forthcoming from the applicant regarding the past conduct, the view taken by the appellate authority remains correct. ;