Dinesh 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.
3. 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.
4. 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.
5. 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.'
6. 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.
7. 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.'
8. 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.
9. 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.
10. The learned counsel for the respondent on the other hand vehemently opposed the submissions of the learned counsel for the petitioners and contended that when the punishment was based on entirely extraneous matters, the Tribunal has rightly interfered in the shockingly disproportionate punishment and that there was no such jurisdictional error in the order of the Tribunal which would warrant interference by this Court in writ jurisdiction. Learned counsel also submitted that appellate authority has not considered the substance of the submissions of the employee and therefore, the order of the Tribunal is amply justified. Learned counsel for the respondent also suggested that so far the petitioners Union of India and others are concerned, the writ petition filed by them was already dismissed by this Court by the order dated 11.12.2000 and the same was never challenged by them. On the contrary, it was the respondent alone who challenged that part of the order date 11.12.2000 by which this Court made observations against the interest of the employee without notice to him, and therefore, the Hon'ble Supreme Court allowed the appeal. The learned counsel suggested that in this view of the matter, the consideration in the present writ petition deserves to be limited to the consideration of the question of consequential benefits.
11. We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and have scanned through the record of the case.
12. The suggestion by the learned counsel for the respondent on the scope of consideration in the present writ petition after remand from the Hon'ble Supreme Court to be limited to the question of consequential benefits only cannot be accepted and deserves to be rejected. The order passed by the Hon'ble Supreme Court as quoted above makes it apparent that the Hon'ble Supreme Court has been pleased to set aside the order dated 11.12.2000 and directed this Court to reconsider the matter in accordance with law. The order dated 11.12.2000 having been set aside, the entire writ petition is required to be considered on its own merits and it is not correct to say that the consideration be limited to the question of consequential benefits or back wages only.
13. After giving our thoughtful consideration to the submissions made by the learned counsel for the parties and the law applicable to the case, we are clearly of opinion that the grounds urged by the petitioners are devoid of substance and the writ petition deserves to be dismissed.
14. At the outset, we may point out that the averment in the writ petition that charge against the delinquent included the allegation of his throwing a chair to hit the Inspector is not correct. We have minutely examined the allegation against the delinquent and found that the charge-against him was of hurling abuses at the Inspector and throwing away chairs which fell near the door. There is not a whisper nor even a suggestion any-where either in the charge or in the findings of the disciplinary authority of any attempt of assaulting any person. This, in our opinion, changes the entire complexion of the matter inasmuch as had it been a case of delinquent hitting or attempting to hit a person, the gravity of the charge would have been much higher and totally different.
15. The present one is a case where the Tribunal, while upholding the enquiry proceedings to be in accordance with law, and while upholding the findings against the delinquent, has still chosen to interfere with the quantum of punishment and instead of sending the matter back to the concerned authorities, has itself modified the punishment from that of compulsory retirement to that of reduction to the next lower stage in time scale of pay for a period of three years with cumulative effect. The principles of law dealing with the subject of punishments in service law have been laid down and explained by the Hon'ble Supreme Court in a series of judgments, the latest one being in the case of Damoh Panna Sagar Rural Regional Bank and Anr. v. Munna Lal Jain (JT 2005 (1) SC 70), wherein the Hon'ble Apex Court while referring to the principles in the case of Om Kumar and Ors., v. Union of India (JT 2000 Suppl. 3) SC 92), B.C. Chaturvedi v. Union of India and Ors. (JT 1995 (8) SC 65), and Union of India and Anr. v. G. Ganayutham (JT 1997 (7) SC 572), summed up the position of law thus:-
'14. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra), the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
15. To put differently unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed.'
16. In the light of the principles emanating from Wednesbury's case (1948 (1) KB 223), as explained and applied by the Hon'ble Apex Court in the aforesaid cases, it is obvious that the interference in the order of punishment is not permissible unless the order was contrary to law or where relevant factors were not considered or where irrelevant factors were considered or decision was one which no reasonable person could have taken. As explained by the Hon'ble Apex Court in Munna Lal Jain's case (supra), the court would not interfere in administrative authorities' decision unless it was illogical or it suffers from the procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. The scope of judicial review remains limited to consider the decision making-process and not the decision itself.
17. In the present case, the Tribunal found 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. The Tribunal referred to the decision of this Court in the case of Ram Naresh Sharma v. RSRTC (1986) 2 Judicial Surveyor 238) wherein this Court held that taking into account of the past conduct of the delinquent, without informing the delinquent of the same was illegal. The Tribunal recorded that it was undisputed that the applicant was not informed of the alleged past conduct thus,-'In this case, it is 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 in the opinion of the Tribunal if applicant's past conduct were not to be considered, in all probability, the disciplinary authority would not have awarded the punishment of compulsory retirement.
18. We have examined the order passed by the disciplinary authority which records the charge and the particulars thereof and find that nothing concerning the past conduct has been stated not even remotely. The misconduct has of course been found and unquestionably the misconduct was a case of gross indiscipline and unbecoming of a postman to deal with his superior i.e., the Inspector. Although, the disciplinary authority after recording this finding has stated that by this act, the delinquent has lost his right to remain in government service, but then, the disciplinary authority dwelled into the past record of the employee and observed that his past record was the proof of the fact that the employee was acting in breach of discipline from time to time and the Department has every time given him a chance to improve but he did not come true and it has resulted in boosting of his moral and he repeated the act. If the employee would be forgiven this time, it would be a major mistake and not only the delinquent would become unruly, the other employees would also be inspired to indulge in indiscipline. According to the learned disciplinary authority, therefore, now tolerating such employee would not be in the interest of the Department and it was necessary that the Department gets rid of such employee, and therefore, removal from service was the only available punishment. The considerations by the disciplinary authority read as a whole make it apparent that so far the aspect of imposing the punishment was concerned, it was the only past conduct of the employee which prevailed over the considerations of the disciplinary authority which is evident from the consideration that if he would still be forgiven, the same would be a mistake and that now such employee deserves not to be tolerated by the Department.
19. What was that past conduct and its nexus with the charge against the delinquent has also not been stated. We find that the delinquent questioned the consideration of the past conduct as a specific ground before the appellate authority which contention was rejected by the appellate authority in the manner that the disciplinary authority has issued the punishment order after the charge having been fully established and after agreeing with the findings of the enquiry officer, therefore, the contention of the appellant that the previous record, punishment etc. were the only basis of the punishment order could not be accepted. From the considerations by the learned appellate authority, the statement of charge and particulars, it remains undeniable that the delinquent was not informed of the past conduct as a relevant material in the enquiry proceedings. This fact has remained undenied and undisputed before the Tribunal also, as referred to hereinabove.
20. On the fundamental principles of requirement of adhering to the principles of natural justice and more particularly when these were the disciplinary proceedings having civil consequences, it was maximum required of the authorities concerned to have informed the delinquent of any material which was to be used against him and to afford him an opportunity to explain. It is rather preposterous to suggest as attempted in the present writ petition that the employee was aware of the past conduct and he had ample opportunities to explain the position when he filed the appeal but in appeal also, it was not pointed out as to whether the facts taken into consideration were right or wrong. As noticed above, the delinquent has specifically raised a ground before the appellate authority of want of particulars of past conduct and illegality in consideration of the same while imposing punishment. The appellate authority, as noticed above, has brushed aside this contention only on the consideration that the contention that past conduct alone was the basis of punishment was not right. It is true that the past conduct alone was not the basis of punishment was not right. It is true that the past conduct alone was not the basis of punishment but nevertheless, it was one of the major and rather essential considerations which prompted the disciplinary authority to say that Department should now get rid of such employee.
21. The past conduct, any particulars and relevance thereof having not been informed, in our opinion, the Tribunal was right in discarding the same. We are clearly of the opinion that applying the Wednesbury principles as explained by the Hon'ble Apex Court in the cases of G. Ganayutham (supra), and Om Kumar (supra), and recently explained in Munna Lal Jain's case (supra), the present one was clearly a case where administrative authorities' decision in respect of punishment suffered from a clear procedural impropriety where an irrelevant factor of past conduct was taken into consideration without the same having even been put to the delinquent.
22. The obvious result therefore is that the aspect of past conduct is required to be removed out of consideration while considering the punishment to be imposed. As soon as this aspect is removed out of consideration, it becomes clear that the delinquent remains guilty of hurling abuses at his superior, misbehaving with him and throwing of the chairs in the office. Such a conduct definitely warrants punishment, and for that matter, definitely a major punishment but then, removal altogether from the service would be shockingly disproportionate. We agree with the findings of the fact of Tribunal that punishment imposed was such which was unconscionable and too severe and harsh.
23. The question then still remains as to whether the Tribunal was right in modifying the quantum of punishment instead of sending the matter back to the authorities concerned. In our opinion, the learned Tribunal in this respect has not taken into consideration the principles of law applicable to the case but in the interest of justice and equity thought proper for itself to modify the punishment. As laid down by the Hon'ble Apex Court to shorten the litigation, the Tribunal may in exceptional and rare cases impose appropriate punishment by giving cogent reasons in support thereof. In our opinion, the present one was not such an exceptional and rare case where the matter could not have been remitted back to the authorities on the question of punishment when the learned Members of the Tribunal decided the original application on 22.8.2000. However, the matter has become older still for the reasons and circumstances narrated above including dismissal of this writ petition with observations about the scope of the order of the Tribunal regarding back wages and the matter having been sent back by the Hon'ble Supreme Court for re-consideration. Therefore, the net result is that for the charge 10 years' old, it would be leading to yet further multiplicity of litigation, if we remand the matter back at this juncture for the purpose of imposing punishment other than that of compulsory retirement or removal. For these peculiar facts and circumstances, in our opinion, it would not be an appropriate exercise of jurisdiction under Article 227 of the Constitution of India to order re-opening of the present case for the purpose of imposing other punishment. Moreover, in our opinion, the Tribunal has also not sent the delinquent scot-free and imposed a punishment which appears to be commensurate with the misconduct found.
24. In the aforesaid view of the matter, we do not feel inclined to interfere with the order passed by the Tribunal dated 20.8.2000. The writ petition, therefore, fails and is dismissed. However, in the circumstances of the case, there shall be no order as to costs.